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.
The case concern[s] an Arizona law, enacted in 2012, that prohibits abortions, except in certain medical emergencies, when the fetus reaches 20 weeks gestation, dated from the woman’s last menstrual period. The law’s definition of medical emergency is narrow, encompassing conditions requiring an immediate abortion to avert a pregnant woman’s death or a “serious risk of substantial and irreversible impairment of a major bodily function.”
The sponsors of Arizona’s law claimed that fetuses can feel pain at 20 weeks, a prime argument among abortion opponents that has been disputed by major medical groups. The fate of similar bans in Georgia and Idaho is still tied up in legal battles. There is also litigation in states across the country over other abortion restrictions, like requiring doctors who perform abortions to have admitting privileges at hospitals and limiting coverage to abortion procedures in health plans or the use of medications to end pregnancies.
Arizona is one of 12 states that have tried to ban most abortions at 20 weeks based on the theory of fetal pain, according to the Guttmacher Institute. But the other states have set the threshold at 20 weeks after fertilization, about two weeks later in a pregnancy than Arizona’s cutoff, but still earlier than fetal viability. Such laws have been struck down in Georgia and Idaho but remain in effect in nine states where they have not been challenged in court.