By David A. Grimes | The Huffington Post | March 14, 2015

In March of 2015, the West Virginia legislature overrode the Governor’s veto of HB 2568, the “Pain-Cable Unborn Child Protection Act.” As noted by the Governor, who vetoed a similar bill last year, the bill is unconstitutional. Arizona passed a similar law in 2012, and the U.S. Ninth Circuit Court of appeals struck down the law as blatantly unconstitutional. In 2014, the U.S. Supreme Court refused to review the appellate court decision, which means that the law’s rejection as unconstitutional stands. Undeterred, West Virginia has now repeated the error.

When realtors dictate the practice of medicine, everyone loses. The West Virginia bill features junk science and other glaring deficiencies. The caption of the bill is illustrative: It has two different errors, one medical and one semantic. First, a fetus is incapable of experiencing pain. Second, a child cannot reside in the uterus. Use of a dictionary resolves the semantic problem, but what is the evidence concerning the notion of fetal “pain”? Continue reading »

On Monday, January 13, the Supreme Court declined to hear a lower court ruling abolishing an Arizona law that criminalized abortions at 20 weeks. Recently enacted restrictive abortion laws across a number of states hinge on the fetal pain assertion, an argument that a fetus can feel pain at 20 weeks of gestation. This assertion is highly disputed among scientists, and begs questions about the possibility of defining and quantifying physical pain, a new area of active inquiry for CLBB as we welcome David Borsook, a neuroscientist who studies pain, and Amanda Pustilnik, a legal theorist, to the CLBB faculty. In her 2012 paper “Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates the Moral Dimensions of Law,” Pustilnik discusses the imminent capacity of neuroimaging for rendering pain, and the implications of such a rendering for legal theory and practice.  What follows below is an excerpt from a recent New York Times article discussing the Supreme Court’s decision.

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The American Psychological Association’s (APA’s) stance on the psychological maturity of adolescents has been criticized as inconsistent. In its Supreme Court amicus brief in Roper v. Simmons (2005), which abolished the juvenile death penalty, APA described adolescents as developmentally immature. In its amicus brief in Hodgson v. Minnesota (1990), however, which upheld adolescents’ right to seek an abortion without parental involvement, APA argued that adolescents are as mature as adults. The authors present evidence that adolescents demonstrate adult levels of cognitive capability earlier than they evince emotional and social maturity. On the basis of this research, the authors argue that it is entirely reasonable to assert that adolescents possess the necessary skills to make an informed choice about terminating a pregnancy but are nevertheless less mature than adults in ways that mitigate criminal responsibility. The notion that a single line can be drawn between adolescence and adulthood for different purposes under the law is at odds with developmental science. Drawing age boundaries on the basis of developmental research cannot be done sensibly without a careful and nuanced consideration of the particular demands placed on the individual for “adult-like” maturity in different domains of functioning.

Read the full paper here.