Catherine Glenn Foster testified before the U.S. Senate Judiciary Committee this morning on S. 160, Sen. Lindsey Graham’s “Pain-Capable Unborn Child Protection Act.” It was a beautiful day for important testimony, some of which I’m sharing here:
Human life in the womb is recognized and protected in federal law and by the laws of most states against crimes of violence. The Unborn Victims of Violence Act makes it a federal crime to kill or cause bodily injury to an unborn human in utero. 18 U.S.C. § 1841(a)(1). Thirty-eight states currently treat the killing of an preborn human as homicide, with at least twenty-eight of those states criminalizing the act from conception. Nearly all fifty states, as well as the District of Columbia, have wrongful death statues, allowing recovery for the death of an unborn human or the subsequent death of an infant born alive who was injured while in utero. Outside of the context of elective abortion, the medical profession recognizes that a physician treating a pregnant mother has two patients, the maternal patient and the fetal patient, and owes duties of care to each.
The regulation of abortion after twenty weeks simply recognizes that there is substantial medical evidence that the preborn child feels pain by that point. However, the question of when a fetus can experience pain has been the subject of some debate over the last two decades. There is research to show that the sensory connections for feeling pain are present by 20 weeks gestation. In fact, there is a steadily increasing body of medical evidence and literature supporting the conclusion that a fetus may feel pain from around 11 to 13 weeks, or even as early as 5.5 weeks. Indeed, there is some evidence that fetal suffering may actually be more intense due to the uneven maturation of fetal neurophysiology. A British survey of neuroscientists showed that 80% of the neuroscientists participating in the survey felt that pain relief should be given to a fetus for abortions after 11 weeks gestation.
Moreover, medical information on fetal neurological development and a child’s consequent ability to feel pain in the womb is a concern of women considering abortion, and therefore providing this information is relevant for a woman to make a fully-informed choice on whether or not to obtain an abortion. In light of this, six states have laws requiring abortion facilities to give women information on fetal pain. Arkansas, Kansas, Louisiana, Minnesota, Missouri, and Oklahoma require physicians to inform women of the possibility of fetal pain at 20 weeks gestation. Additionally, Georgia requires abortion facilities to inform women orally prior to an abortion that fetal pain information is available on a state-sponsored website.
Insofar as the existence of pain in the preborn infant at or before 20 weeks is firmly established in the congressional findings of S. 160, and reflects a reasonable reliance by Congress on current medical science, protecting infants in the womb from intense pain felt during an abortion is an appropriate and constitutional state interest in restricting abortion beyond this time frame. Gonzales, 550 U.S. at 163 (“The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”).