The History of Texas' "Fetal Pain" Legislation
The bills HB 2 and SB 1 currently being considered by the Texas Legislature have been around for a while...
In 2007, the Supreme Court ruled in Gonzales v. Carhart that the Partial Birth Abortion Act of 2003 was constitutional. The National Right to Life Committee explains:
With that decision, a slim majority of justices ruled for the first time that they would uphold a ban on a particular abortion procedure because the state has a “compelling interest.”
Seeing this new opening, National Right to Life then crafted a model state law that would prohibit the abortion of any unborn child who had reached the stage of development at which compelling scientific evidence indicated that he or she had the capacity to experience pain.
In 2010, NRLC helped Nebraska pass the first law to prohibit the abortion of any such “pain-capable” unborn child.
This model legislation was passed in several other states, and is currently being pushed in Texas, as evinced by the similarities between Texas' HB 2 (formerly SB 5) and Nebraska's LB 1103:
SECTION 1. (a) The findings indicate that:
(1) substantial medical evidence recognizes that an unborn child is capable of experiencing pain by not later than 20 weeks after fertilization;
(2) the state has a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that these children are capable of feeling pain;
Sec. 3 The Legislature makes the following findings:
(1) At least by twenty weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain;
(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.
Sec. 171.044. ABORTION OF UNBORN CHILD OF 20 OR MORE WEEKS POST-FERTILIZATION AGE PROHIBITED. Except as otherwise provided by Section 171.046, a person may not perform or induce or attempt to perform or induce an abortion on a woman if it has been determined, by the physician performing, inducing, or attempting to perform or induce the abortion or by another physician on whose determination that physician relies, that the probable post-fertilization age of the unborn child is 20 or more weeks.
Sec. 171.046. EXCEPTIONS. (a) The prohibitions and requirements under Sections 171.043, 171.044, and 171.045(b) do not apply to an abortion performed if there exists a condition that, in the physician’s reasonable medical judgment, so complicates the medical condition of the woman that, to avert the woman ’s death or a serious risk of substantial and irreversible physical impairment of a major bodily function
Sec. 5. No person shall perform or induce or attempt to perform or induce an abortion upon a woman when it has been determined, by the physician performing or inducing the abortion or by another physician upon whose determination that physician relies, that the probable postfertilization age of the woman’s unborn child is twenty or more weeks unless, in reasonable medical judgment (1) she 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
As the NRLC admits, the purpose of this legislation is to undermine Roe v. Wade:
National Right to Life, working with legislators at both the federal and state levels, will continue to “push the envelope” to seek the maximum possible protections for unborn children. And many lives are being saved as we advance towards the day when we will truly see a Culture of Life restored!
National Right to Life devised these laws that are undermining the legal ground on which Roe v. Wade stands. Your financial support for National Right to Life is needed to pass more lifesaving laws in 2012 and ultimately overturn the unjust and deadly Roe v. Wade decision.
On March 6, 2013, a federal court struck down Idaho's version of this model legislation. The NRLC is looking forward to the Supreme Court fight.
The origin of another section of the Texas bill discussed in this post.