As the U.S. Senate takes up the Pain Capable Unborn Child Protection Act, abortion advocates and their friends in Congress will undoubtedly predict serious consequences for women’s health. This is a common refrain in opposition to any regulation, however modest, of abortion or the abortion industry. But in the case of a limitation on abortion after 20 weeks gestation, when science indicates that the unborn child can feel pain, there is no reason to defer to these self-interested protests from abortionists. Instead of listening to what they say, Congress should look to their actions – or rather inactions.
Over the past five years at least 14 states have enacted laws virtually identical to the proposed federal Pain Capable Unborn Child Protection Act. Yet, with all those laws on the books, a litigation-happy abortion industry with the power of most big law firm pro bono departments ready to assist them, has filed only three lawsuits.
They have successfully enjoined two laws in the U.S. Court of Appeals for the 9th Circuit (Arizona and Idaho) on federal constitutional grounds. Another lawsuit now in the Georgia Supreme Court has achieved a preliminary injunction solely on state constitutional grounds because the abortionist who sued asked the court not to rule on any federal constitutional questions. That’s it.
Laws like the federal Pain Capable Unborn Child Protection Act are currently in effect in at least 11 states without challenge: Alabama, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Nebraska, North Carolina, North Dakota, Texas, and West Virginia.
If you were unaware that, despite its sky-will-fall rhetoric, the abortion industry is generally letting these laws stand, you aren’t alone. Just this week, the Associated Press published a story about the proposed Wisconsin fetal pain law. After noting the three injunctions, the article claimed that “litigation in other states is ongoing.” The lack of specificity is telling. It’s just not true. Though notified of this error, the AP and the reporter have offered no response.
While telling legislators that enacting these laws will cause women immediate harm, the abortion industry has nevertheless chosen not to challenge the great majority of these laws. Abortion advocates know the laws are on firm legal ground and will likely be upheld by all but a few abortion-friendly courts.
In fact, abortion advocates fear their prospects at the U.S. Supreme Court so much that they are willing to allow these laws to stand to avoid creating an opportunity for the justices to weigh in.
Take the Texas law, for example. Just this week the 5th Circuit upheld, almost in their entirety, abortion regulations that made state Sen. Wendy Davis and her pink sneakers famous two summers ago. But missing from the 5th Circuit’s opinion upholding Texas’s HB2 is any mention of its restriction on abortions after 20 weeks gestation. Two years ago, that provision was the centerpiece of the controversy, and Davis opposed it in a lengthy filibuster. But while abortionists have brought multiple lawsuits challenging (mostly unsuccessfully) virtually every part of the Texas law, the prohibition on abortions after 20 weeks was never challenged. It has been Texas law since October 2013.
As MSNBC reported, there is…
…a strategic reason to avoid challenging that [20-week] ban…. [A] Texas challenge would go to the conservative Fifth Circuit. Not only would that court potentially uphold the law…, the combination of decisions would create a split in the circuits that would make the Supreme Court likelier to hear it.
Despite the existence of these unchallenged fetal pain laws, the skies in Texas remain big and bright, and while the stars may be falling over Alabama, the rest of the firmament remains fixed. The abortion industry has produced no evidence of any harm to women from these laws. All the while, unborn children at or approaching viability are not suffering through the brutal pain of an abortion.
Abortionists are free to make this strategic decision not to challenge fetal pain laws. But the rest of us, including our elected officials, media, and courts, should acknowledge that none of the bad consequences they are warning about are actually happening where these laws are in effect.
Their decision not to challenge these laws demonstrates not only that the claims of threats to women’s health are not true, but also that even the abortionists making those exaggerated claims don’t really believe their own press releases.