The Real Reason Anti-Choice Activists Are Pushing Fetal Pain Laws

The anti-abortion activists and politicians in the states have made passing 20-week abortion bans based on the idea of “fetal pain” a cause-du-jour for this year’s legislative sessions.  It’s become obvious, as Kate Sheppard reported in Mother Jones, that “fetal pain” is their number one priority this year, with four new states enacting bans and a dozen others at least proposing the legislation.

Emily Bazelon writes in the New York Times that the Center for Reproductive Rights is considering their own eventual lawsuit over the bans, which are unconstitutional due to the Roe V. Wade ruling stating that abortion cannot be banned before a fetus is viable, usually at around 23 weeks.  These state-based bans are only carving off a small section of new abortions, and as Bazelon notes these bans are in many cases “symbolic.”  Some of the states involved don’t even have providers that perform second trimester abortions, and the number of women seeking them out are only a tiny percentage of the overall number of women wanting the procedure.

It’s that statistic that is so dangerous, and why the push for legal action over the ban is exactly what anti-choice activists are both hoping for and counting on.

Just as anti-abortion activists won a victory in ending “partial-birth abortion,” a made-up term that helped change the face of abortion challenges by placing a government duty to “protect” a fetus over the needs of a mother, even though very few abortions would ever be affected by the ban, “fetal pain” bans seek to do the same: allow the Supreme Court to place a new standard for which the rights of a fetus outweigh the rights of the woman carrying it.  

The anti-choice believe that because the amount of abortions that would be affected by the ban are so few, and the ruling would seem so minor, it may be easier for them to get a court win on this type of ban than any other type.  Mary Spaulding Balch, attorney for the National Right to Life committee, is literally begging for the court challenge, and other anti-choice groups believe that the Supreme Court would be more than willing to rule in favor of a ban that might “allow these challenges at the edges that wouldn’t formerly overturn the Roe decision.”

This is what they are pushing for.  If they can get a court to rule that “fetal pain” is a new threshold for making abortion laws, they have even more “science” to start rolling back the restrictions.  According to, once they can get the court to rule that “fetal pain” is the point in which the fetus’s existence outweighs the wishes of the woman carrying it, they will then begin to introduce more “evidence,” this time claiming that fetuses can feel pain at 13 and 1/2 weeks, totally outlawing all abortions after the first trimester.  Or even some “research” claiming that the receptors are in place at 8 weeks, which could make an abortion impossible to access within a month of discovering a pregnancy, maybe even less.

How important is this approach of incremental restriction to set up a new precedent, opening the door then for much more inclusive bans?  Right to Life Ohio has actively campaigned against Ohio politicians trying to pass the “heartbeat ban” that would make abortion illegal after a heartbeat can be detected.  Their reason?  They know that such a large step would be quickly dismissed by the Supreme Court, and could hinder their efforts to get “fetal pain” recognized by the courts as a valid cutoff point for abortion access. 

Ohio also passed a fetal pain ban, this ban with the blessings of the state’s Right to Life group.

The 20-week ban was never about trying to stop later term abortions.  It was always about setting a new precedent to overturn Roe V. Wade with a bill seen as too inoffensive to see as being the true threat to abortion access it really is.

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  • crowepps
  • mattie

    Roe v. Wade was decided the year after I graduated from high school.  That was before the term “pro-life” was coined, in an effort to control women’s lives.  Never in a million years would I have thought our country would turn the clock back to the “good ol’ 50s.”  In the 50s, women were denied the right to make decisions involving their own bodies – even the use of contraceptives was prohibited by law.  In 1965, Griswold v. Connecticut struck down such a law, based on a “right to marital privacy.”  That (and subsequent rulings regarding privacy rights) paved the way for  Roe v. Wade in 1973.  I thank God that I came of age during a period when women were demanding equality and individual rights – including the right to privacy.   What has happened since then?  Maybe I and those like me were too complacent, taking our individual liberties for granted.  

    I am in shock that the “pro-lifers” have hijacked those rights, catupulting us back to an era that stifled women both professionally and personally.  Today, young women face a systematic whittling away of the rights for which a generation of women had fought valiently.  States are passing draconian laws to control women and women’s choices – laws that in some cases prohibit doctors from even discussing reproductive options with women.   How could this happen in the 21st century?

    It’s time for women to stand up for dignity, and self-determination.  If we don’t, our daughters and granddaughters will pay a heavy price.   

  • elburto

      claiming that fetuses can feel pain at 13 and 1/2 weeks



    Erm… how?  Not only is that stupidly specific (not everyone ovulates on the same schedule, not to mention that every foetus will be developing slightly differently) but it defies all scientific knowledge.

  • crowepps

    Hey, they have FAITH!  They don’t need no dang scientific knowledge!