Notes on the "Unborn Child Pain Awareness Act of 2005"

On 6/6/04, we posted some thoughts and questions about the appropriate role of expert testimony in litigation over the constitutionality of abortion prohibitions. We were moved to reflect on this subject by the district court's opinion in Planned Parenthood Ass'n of Am. v. Ashcroft, 320 F. Supp. 2d 957 (N.D. Cal. 2004) (Hamilton, J.) (striking down ban on "partial birth" abortion), which included an extensive discussion of expert testimony on such subjects as the experience of fetal pain at various gestational ages. The expert debate on fetal pain in Planned Parenthood was mostly about whether the capacity to experience pain emerges as early as 22 weeks in fetal development, or as late as 26 weeks. Judge Hamilton felt that the question was not dispositive of the legal issues before her (because it was undisputed that if fetuses experience pain during "partial birth" abortions, then they also experience equal or greater pain during alternative procedures). That may partially explain why she was ultimately agnostic on the point:

The only way that an outside observer can determine whether any entity feels pain is if the entity communicates distress to the observer. The parties agree that fetuses are unable to communicate, so it is impossible to determine conclusively if the stress responses seen in fetuses in fact translate into an actual pain response, and thus no studies on fetal pain suffered during abortions have been conducted. Both parties agreed that as a result, much of the debate on this issue is based on speculation and inference.

320 F. Supp. 2d at 997; see also id. at 1002 (issue is "unsettled in the scientific community").

Anti-abortion legislators are now trying another tactic. The "Unborn Child Pain Awareness Act of 2005" has been introduced by sponsors in both the United States Senate (S. 51) and the House of Representatives (H.R. 356). Under the bill, abortion providers would be required to deliver the following "information" to pregnant women seeking abortion of fetuses whose probable gestational age exceeds 20 weeks:

You are considering having an abortion of an unborn child who will have developed, at the time of the abortion, approximately XX weeks after fertilization. The Congress of the United States has determined that at this stage of development, an unborn child has the physical structures necessary to experience pain. There is substantial evidence that by this point, unborn children draw away from surgical instruments in a manner which in an infant or an adult would be interpreted as a response to pain. Congress finds that there is substantial evidence that the process of being killed in an abortion will cause the unborn child pain, even though you receive a pain-reducing drug or drugs. Under the Federal Unborn Child Pain Awareness Act of 2004 [sic], you have the option of choosing to have anesthesia or other pain-reducing drug or drugs administered directly to the pain-capable unborn child if you so desire. The purpose of administering such drug or drugs would be to reduce or eliminate the capacity of the unborn child to experience pain during the abortion procedure. In some cases, there may be some additional risk to you associated with administering such a drug.

This "information" would have to be delivered orally and also in a to-be-developed governmental brochure. If the woman requested anesthesia for the fetus, its provision would be a condition for performance of the abortion. Because physicians and patients suffer no real burden from governmentally mandated paperwork, the woman would also be required to complete an "Unborn Child Pain Awareness Decision Form," which the provider would be required to retain on file. Because civil penalties of $100,000 (first violation) or $250,000 (subsequent violations) would not afford sufficient incentives for providers to comply, and because one salutary method for deterring physician misbehavior is to promote private lawsuits seeking exorbitant damages, a private right of action would be created for women whose providers did not supply the "information" as prescribed, to include claims for "actual and punitive damages." No word in the legislation on whether the "actual" damages would be limited to pure economic loss or would also encompass the mother's "pain and suffering." If the latter, the legislation imposes no cap.

It is a hallowed strategy, when promulgating legislation of dubious constitutionality, for legislators to deem facts into existence. But if this legislation is passed, judicial scrutiny will not stop at such congressional deeming in the inevitable constitutional challenges (including not only the obvious Roe v. Wade challenges, but also the First Amendment challenges to be brought by physicians who object to being conduits for government-mandated speech). The courts will want to know whether there is actual scientific support for the legislation's premises. It therefore appears that the courts will again face the question that Judge Hamilton found it both unnecessary and impossible to resolve. It will be interesting to see whether the experts themselves are a little less agnostic this time around.