The Science of Constitutional Rights

Eroding the third trimester standard established in Roe v. Wade in 1973, the Idaho legislature passed the “Pain-Capable Unborn Child Protection Act” in 2011, prohibiting abortions based on neuroscientific findings that pain sentience in fetuses may occur before viability. Roe v. Wade insisted on viability as the critical point where the fetus’s life might outweigh the mother’s right to privacy, but Idaho, along with several other state legislatures, is fighting against the Supreme Court’s standard.

As the basis for the stricter abortion standard, Idaho’s “Pain-Capable Unborn Child Protection Act” cites findings that pain receptors are present throughout “the unborn child’s body no later than sixteen (16) weeks after fertilization” and that “the unborn child reacts to touch” by eight weeks after fertilization. Anti-abortion proponents support the pain-capable fetus protection acts, and former Presidential candidate Mitt Romney has voiced his agreement with such measures: “I will advocate for and support a Pain-Capable Unborn Child Protection Act to protect unborn children who are capable of feeling pain from abortion.”

Unsurprisingly, not everyone is on board with the contraction of abortion rights. In defending an Idaho woman who was arrested for inducing her own abortion and a related suit involving the Pain-Capable Unborn Child Protection Act, attorney Rick Hearn, M.D., questions the government’s use of science to circumscribe the constitutional right to privacy and thus abortion. William Egginton, a philosophy professor and guest columnist for the New York Times, attempts to discern the relationship of pain sentience to personhood for abortion purposes in an entry for the NY Times’s Opinionator blog. Egginton opines that scientific findings are facts that can inform thinking but mere data can neither provide an absolute definition of personhood nor generate an airtight argument for a particular variation of constitutional rights.

Frankly, the Pain-Capable Unborn Child Protection Acts are inconsistent with the standard established by Roe v. Wade. These statutes prioritize the possibility of the fetus’s pain over that of the mother’s right to privacy, a framework the 1973 Supreme Court rejected in favor of valuing the mother’s freedom to choose until viability. Pain sentience is simply not the standard set forth by Roe v. Wade, and the use of pain as a guideline for limits on abortion would greatly limit women’s life choices.