One of the most basic and widely accepted principles of political governance is that that the state is justified in promulgating laws to protect individuals from harm by others. The state’s power to legislate and protect against a variety of harms, including the harm of being made to suffer physical pain, has been recognized in both domestic and international law. “The Government of course has an obligation to protect its citizens from harm.” The exercise of this power is up to the prudential judgment of our state and national legislatures, however, and is not a constant constitutional imperative.
This power of protection encompasses all living creatures, as well as developing fetal human life. Thirteen states and the House of Representatives have passed legislation that strictly limits abortions during the second half of the pregnancy, generally after nineteen weeks gestation, to protect the developing human person from pain. These laws, known as Pain-Capable Child Protection Acts, strictly limit abortion after the point of gestation when the unborn child has developed the capacity to feel pain during the process of an abortion. Proponents argue that protecting an unborn child from such pain is a natural extension of the long tradition in American law prohibiting acts that inflict unwarranted suffering on human beings and other sentient creatures. Opponents argue that such laws are based on scientific speculation and inflammatory rhetoric. Given the large number of states adopting Pain-Capable Child Protection Acts, it is no surprise that these arguments are now before federal courts. This Article explores the arguments supporting the existence of fetal pain and the constitutionality of abortion limits at twenty weeks gestation.