It’s time to move beyond Roe vs Wade

The Republican governor of Nebraska, Dave Heineman, signed a bill on 13 April to ban abortions from 20 weeks gestation in his state. The bill is entitled the Pain-Capable Unborn Child Protection Act and will ban abortion on the grounds that the fetus can feel pain from 20 weeks onwards (1). The bill is scheduled to come into effect on 15 October, but will almost certainly face several legal challenges before then. Nevertheless, if successfully passed, it will be the first time US abortion has been restricted on any grounds except viability since the historic decision by the Supreme Court in Roe vs Wade in 1973.

US legislative interest in the possibility of fetal pain has increased since 2003 when the Bush administration successfully passed the Partial-Birth Abortion Ban Act (HR 760). This act was immediately challenged in New York, California and Nebraska on the grounds that women are constitutionally required to have access to abortion to preserve their own health. Those challenges were successful, and HR 760 was overturned, but the possibility of fetal pain was raised as evidence in each state by the expert witness Dr Kanwaljeet (Sunny) Anand. Judge Casey, who oversaw proceedings in New York, pointedly remarked in his summing-up that this evidence was never challenged.

Anand’s testimony spawned the 2005 Unborn Child Pain Awareness Act, which Congress debated in 2006. The bill secured a majority, but failed to obtain the two-thirds majority necessary to pass as a law. State efforts, however, have been more successful. At least 25 US states have deliberated on fetal pain legislation and at least eight (Alaska, Arkansas, Georgia, Oklahoma, South Dakota, South Louisiana, Texas and Wisconsin) now have legislation requiring that women seeking abortions be informed of the possibility of fetal pain. If successful, the Nebraska legislation will add to this growing trend to use fetal pain to restrict access to abortion. The Nebraska legislation will also extend that trend by becoming the first law directly to prevent a requested abortion on the grounds of fetal pain.

The proposed Nebraska law also has its origins in the murder of Dr George R Tiller. Tiller provided late-term abortions in Wichita, Kansas until abortion opponent Scott Roeder shot and killed him on 31 May 2009. Tiller’s clinic subsequently closed, but LeRoy Carhart then stated that he would perform some late term abortions at his clinic in Bellevue, Nebraska.

Dr Carhart has been a long-time thorn in the side of abortion opponents in Nebraska. Carhart, for example, led the team of physicians that successfully challenged the Nebraska state in the Partial-Birth Abortion Ban Act trials. Carhart will be the only practitioner in Nebraska affected by the new bill after October and he may mount a legal challenge to prevent his work being curtailed.

A challenge to Roe vs Wade

The Nebraska Bill will prevent abortions before viability and so it is a direct challenge to the constitutional principles established by Roe vs Wade. Consequently, any legal process could eventually end at the Supreme Court. The possibility of using fetal pain to restrict abortion nationally will then rest on the decision of the nine Supreme Court judges. Five of those judges (Kennedy, Roberts, Alito, Thomas and Scalia) previously voted for the Partial-Birth Abortion Ban Act when that act reached the Supreme Court in 2007. It seems likely that those five judges will at least be open to supporting Nebraska. If supportive of Nebraska, those five votes would provide the majority necessary to overturn the constitutional principles founded in Roe vs Wade and potentially end a relatively liberal era in US abortion access.

Will a legal challenge succeed?

A legal challenge to Nebraska is likely to focus on two major points. The first is that states are typically not permitted to legislate in the face of medical uncertainty. And whether the fetus feels pain is highly uncertain. Mark Rosen, senior author of a 2005 review of fetal pain published in the Journal of the American Medical Association, sent a letter to the Nebraska Legislature on 30 March documenting the medical uncertainty regarding fetal pain.

In section 3 of the Nebraska Bill, the legislature makes the following points:

1. At least by 20 weeks after fertilisation there is substantial evidence that an unborn child has the physical structures necessary to experience pain;
2. There is substantial evidence that, by 20 weeks after fertilisation, unborn children seek to evade certain stimuli in a manner which in an infant or an adult would be interpreted as a response to pain;
3. Anaesthesia is routinely administered to unborn children who have developed 20 weeks or more past fertilisation who undergo prenatal surgery;
4. Even before 20 weeks after fertilisation, unborn children have been observed to exhibit hormonal stress responses to painful stimuli – and such responses were reduced when pain medication was administered directly to such unborn children;
5. It is the purpose of the State of Nebraska to assert a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.

However, in his letter to the Nebraska Legislature, Mark Rosen noted, correctly, that at 20 weeks’ gestation there is broad agreement that the physical structures necessary for pain are not fully developed or functional. Any responses to noxious stimuli at 20 weeks are akin to reflexive responses that do not involve conscious awareness. Furthermore, Rosen said, again correctly, that the use of anaesthesia during prenatal operations on fetuses is intended only to facilitate the operative procedure, by, for example, ensuring stillness, and to promote future good health – it is not about preventing current pain. A hormonal stress response cannot be equated with a painful experience and there is, contrary to the assertions of the bill, only speculation and conjecture regarding the possibility of fetal pain.

I am sympathetic to Rosen’s view and have written extensively to oppose the idea of fetal pain. But the argument is highly technical and relies on an acceptance of pain as a conscious state involving the higher regions of the brain. The court might legitimately argue that pain is a simpler state of being and while the fetus might not experience a ‘pain’ equivalent to the pain experienced by conscious adults and infants, ‘fetal pain’ might still matter. The fetus certainly reacts when a noxious event happens and that reaction might be enough for the court to use the term pain and reject the claim of ‘medical uncertainty’. Professor Anand has been influential in past court debates regarding fetal pain and he is likely to play an important role again should the issue reach court.

The second major point of any legal challenge is likely to focus on the constitutional requirements set in place by the Roe v Wade ruling. This ruling declared most state laws, which then prohibited access to abortion, to be unconstitutional. The Supreme Court’s decision prevented all legislative interference in abortion during the first trimester, and allowed restrictions during the second trimester only to protect the health of the woman. In the third trimester, after viability, a state could create legal barriers to abortion, provided it made exceptions to preserve the life and health of the woman seeking abortion.

The current Nebraska bill includes an exception to protect the health of the woman. An abortion can proceed after 20 weeks if, ‘in reasonable medical judgment, [the pregnant woman] has a condition which so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function’. If it is accepted that the Nebraska bill includes sufficient health protections, then any constitutional challenge will rely on the argument that the bill imposes an undue burden on a woman’s right to choose an abortion or violates a woman’s right to equal protection from the law or fails to serve any legitimate state interest. The success or failure of those arguments will boil down to whether a majority of the nine Supreme Court judges wish to uphold the constitutional arrangement provided by Roe vs Wade. They may not think that constitutional arrangement to be necessary.

Is a legal challenge the right way to go?

Tactically, it is reasonable to fight the Nebraska legislation through the courts. But it should be understood that it is a narrow means of protecting access to abortion in the United States and there is the real possibility of failure. It is inevitable that one day a majority of Supreme Court judges will turn against the precedent set in Roe vs Wade if the opportunity arises.

Perhaps now is the time for the pro-choice lobby to recognise that Roe vs Wade was a mixed blessing. For the past 30 years, it has been the Supreme Court, and not broader society, that has made the necessary decisions about abortion. Justice Blackmun’s majority opinion in Roe focused on abortion as a privacy right (the ability of patients and doctors to pursue clinical decisions without fear of interference from the state) and the right of clinicians to practice their profession. In contrast, the rights of women to control their bodies and their destinies did not feature in the 1973 opinion. Roe effectively took the power to decide about abortion away from society and gave that power to the Supreme Court. Thus began more than 30 years of legal wrangling and posturing over abortion that has increasingly pushed everyone but lawyers and judges to the side.

In an important sense, the battle for autonomy over fertility was lost in 1973 rather than won because the battle shifted away from women’s autonomy to decide their life course as equal citizens and towards influencing nine Supreme Court judges. Women need access to abortion to have control over their own destinies rather than having their destiny dictated by a biological accident. Whether the fetus feels pain or is viable are both besides the point – at every gestational point the fetus is fully integrated into the woman’s physiology with no independent existence, and nobody, including the Supreme Court, should be able to force someone to do something with their body that they don’t want to do.

The possibility of Roe vs Wade being overturned is of considerable concern. The consequences would be negative, especially for poor women living in more conservative states. But a potentially negative situation might be turned more positive if those with pro-choice sentiments start to recognise the limitations of abortion politics that Roe created. Women’s access to abortion in the US is under constant threat of curtailment for as long as that access depends on the opinion of the Supreme Court. Defending the legacy of Roe is thus limited and it is overly defensive to suggest that an argument for improved access to abortion cannot be won in modern America. Anyone who values women’s autonomy as independent citizens should challenge the unwarranted control the Supreme Court has over abortion.

Stuart Derbyshire is senior lecturer in psychology at the University of Birmingham, England.