Thursday, May 28, 2015

Lesser Solution: Well-meant Window Dressing?

Against two direct means of undoing Roe's usurper mischief – Supreme Court repentance and self-correction or constitutional amendment – the House of Representatives proposes a federal statute banning many abortions after 20 weeks gestation (but not most abortions because, after all, most abortions occur before 20 weeks, and not all abortions after 20 weeks).

Congress has previously considered significant abortion legislation, and adopted a few significant abortion-related bills. Among those bills, there have been ones finding that human life begins at conception and that conceived humans are persons under the Constitution, and others have been proposed limiting the jurisdiction of federal trial and appellate courts to hear challenges to state laws imposing restrictions on abortion. Those proposed bills never passed Congress.

Congress has also entertained the possibility of propounding constitutional amendments to the States on the topic. No amendment has passed out from the Congress to the States for ratification.

That Congress could act to restrict, to restrain, to reduce, abortion funding, international abortion services, and the like, is obvious. The Hyde Amendment, for example, has been part of federal law for nearly four decades, and prevents Medicaid funding of most abortions. In addition to the Hyde Amendment funding restriction, Congress also imposed a restriction on abortion referrals by contractors participating in Title X Family Planning programs.

Congress has also imposed a restriction on the barbaric "intact dilation and extraction" abortion, the so called "partial birth abortion." That ban survived constitutional scrutiny when the Supreme Court considered challenges to it in Gonzales v. Carhart.

Now, with Roe having remained a viable decision of the Court for four decades, we might be inclined to forget that killing children before birth has not always been legal in the United States. Harry Blackmun's phony history of abortion regulation, painfully misstated in Roe v. Wade notwithstanding, abortion always was a criminal enterprise in the United States. When the colonies declared their independence from Britain, they immediately adopted English Common Law as the rule of decision for such matters. In turn, at least since the publication of the Fleet Street Commentaries on the Law, around the end of the thirteen century, English Common Law treated abortions performed after "quickening" as felonies. (In fact, in the Christian West, since the time of the Apostles, abortion was always taught to be a moral wrong; in the Didache, or the Teaching of the Twelve, the teaching is precise: "you shall not murder a child by abortion nor kill that which is born").

Once the States began enacting statute law to modify the English Common Law, they simply transformed the criminal prohibition of abortion from the common law framework to a statutory framework. Missouri, for example, which was admitted into the Union in 1821, included a criminal prohibition of abortion virtually immediately, with the Legislature's enactment of its first criminal code. States that had not adopted criminal codes prohibiting abortion continued to treat abortion under their common law as a crime until criminal abortion statutes were adopted.

It was not until Roe v. Wade that the Supreme Court usurped to the federal leviathan the power of the States to regulate the crime of abortion. Until then, there was no reasonable question but that the States had, when drafting and ratifying the Constitution, retained to themselves plenary power to enact criminal laws for the regulation of public health, safety and morals. In fact, until Roe v. Wade, it would have been thought, by legal theorists, a queer notion to ask by what right the States enacted a criminal code restriction on abortion. Indeed, until the newspeak of the radical abortion legalization movement dominated the Supreme Court, the odd notion would have been that Congress had power to regulate and criminalize conduct historically within the exclusive province of State regulation.

And that last, my friends, is the disconcerting rub of the PCUCPA. By what power, by what right, does Congress enact a criminal statute regulating conduct that, until Roe v. Wade, was certainly the sole prerogative of the States to regulate or to prohibit? If there are legitimate methods for the federal Congress to do so, those methods arise from specific powers granted to Congress in the Constitution. In the PCUCPA, the pre-ambulatory matter expressly states that Congress relies on its Commerce Clause power and its Enforcement Clause power. Section Five of the Fourteenth Amendment -- the Enforcement Clause -- expressly grants to Congress the power to enforce the provisions of the Amendment.

Historically, Congress has employed its Commerce Clause power in certain cases of clear interstate criminal activity. The Mann Act prohibits interstate transportation for the purposes of prostitution. Such a restriction states clearly the connection between the harm to be addressed and the power of Congress to address it. The harm Congress addressed in the Mann Act was transporting women across State lines to put them to work as prostitutes in the early 20th Century American sex trade.

The PCUCPA, other than the assertion in its preamble that Congress relies on its Commerce Clause power, does not use language typical of enactments that depend on a nexus with interstate commerce sufficient to justify a federal legislative solution.

Consider, for example, the Religious Land Use and Institutionalized Persons Act of 2000. Following the Supreme Court’s decision striking down a provision of an earlier Act, the Religious Freedom Restoration Act, that created a cause of action against States and localities in certain cases arising from conflicts from demands of government inconsistent with private religious duty, Congress passed, and President Clinton signed RLUIPA into law. To anchor this new law to a clearly permissible base of power, Congress rested its authority on the Spending Clause and the Commerce Clause. In each case, Congress used language quite typical to such exercises.

Here is the relevant portion of RLUIPA:
Title 42 USC § 2000cc—Religious Land Use and Institutionalized Persons Act(a) SUBSTANTIAL BURDENS.—(1) GENERAL RULE.—No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—(A) is in furtherance of a compelling governmental interest; and(B) is the least restrictive means of furthering that compelling governmental interest.(2) SCOPE OF APPLICATION.—This subsection applies in any case in which—(A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;(B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or(C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.
Notice the language underlined in paragraph (a)(2)(A)?

That language ties the statutory duty to federal funding. It is typical of exercises of the Spending Clause. The notion is probably familiar to you. You may recall a time when the legal drinking age in virtually every State was 18 years of age. Congress tied receipt of federal funds to a raised drinking age of 21 and virtually every State followed along. In like vein, when the campaign to reduce highway driving speeds to 55 miles per hour needed an assist, Congress tied receipt of federal highway funds to the enactment of a State maximum speed limit of 55 miles per hour, and again, the States went along.

No violation of State sovereignty prohibited by the Constitution occurs when Congress entices States to adopt laws by offering funding or other benefits; these are not cases of the carrot and the stick, but of the carrot being offered to entice desired behavior from the 50 “horses.”

Now, notice the language italicized language in paragraph (a)(2)(B)?

That language ties the statutory duty to interstate commerce. That kind of language insures that Congress is not overreaching when it acts under the Commerce Clause. It is the typical and usual language in such cases.

As passed by the House, however, the PCUCPA does not, for example, limit itself to those abortions in, or affecting, interstate commerce. Such language is more than typical, it is a significant precursor to any judicial evaluation of whether the PCUCPA can survive scrutiny as an exercise of the Commerce Power. Merely asserting that a power of Congress justifies a particular statute does not resolve the question. If the PCUCPA is to survive such scrutiny, then this bill need substantial buttressing in the form of more formal language regarding the nexus to interstate commerce powers of Congress.

I doubt, as well, that a claim that the PCUCPA is an exercise of the Enforcement Clause power of Congress under the Fourteenth Amendment. The Fourteenth Amendment, in Section Five, grants to Congress the power to enact legislation enforcing the Amendment:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
If the PCUCPA advances in Congress, questions will arise about the basis on which Congress acts. In fact, those questions are already being raised. Professor Jonathan Adler, of Case Western Reserve University School of Law, tweeted:
“Q for conservatives upset about pulling of abortion bill: Where's the enumerated power that lets Congress do such a thing?”
While that puts the question rather broadly, rather than providing a tight focus on Congress’ Enforcement Clause power, it does show that some are keeping their eye on the ball, even if it is not yet clear which power, enumerated or imagined, upon which the PCUCPA may be enacted.

Questions related to the Enforcement Clause basis for the PCUCPA cannot be gainsaid, ignored, or whistled past like a cemetery on moonless night. Particularly where the Congress so seldom addresses the problem of legalized abortion, we should have a reasoned discussion on such questions as whether the PCUCPA constitutes an exercise of the Congress' Section 5 power, whether that exercise is a legitimate one, and whether the Supreme Court would sustain the Act in a challenge to its constitutionality?

For my part, having given the questions some thought, and the law related to them some consideration, I am not convinced that the PCUCPA constitutes a legitimate exercise of the Enforcement Clause power, or at least, I am fairly convinced that the Supreme Court will not, without a sea change, hold that the PCUCPA is a constitutionally valid exercise of that power.

We are not without guidance from the Supreme Court regarding its views on legitimacy of Congress’ invocation of the Enforcement Clause power. In fact, the previously mentioned Religious Freedom Restoration Act, when it came before the Supreme Court, provided the Court the opportunity to consider just such a claimed exercise of the Enforcement Clause. Under RFRA, Congress imposed on both the federal government and the States certain duties when confronted with claims that government action imposed a substantial burden on the exercise of religion. In City of Boerne v. Flores, the Supreme Court considered a Texas city’s argument that Congress overreached when it imposed such duties on States and localities as an exercise of its Enforcement Clause power.

The Supreme Court has used a fairly straightforward explanation of when the Enforcement Clause power has been legitimately invoked. Because of the language of Section Five, the Court evaluates Congressional actions to discern whether its actions are remedial in nature – curing past wrongs – or whether they are substantive in nature – creating new rights or obligations not previously embodied in law. To clarify, a doctor gives you antibiotics to cure or remedy a bacterial infection; she gives you a vaccination to prevent a new or different infection.

In City of Boerne, the question of whether the duty imposed on States and localities was remedial or substantive ultimately came down to  Justice Kennedy’s conclusion that RFRA created a new statutory legal obligation for States and localities and granted a new, statutory cause of action or defense to religious claimants. For that reason, the Court concluded that RFRA constituted a substantive enactment and was beyond the legitimate scope of the Enforcement Clause power of Congress. Here is the central passage on this point:
Regardless of the state of the legislative record, RFRA cannot be considered remedial, preventive legislation, if those terms are to have any meaning. RFRA is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections.
To fully grasp why RFRA’s application to the States worked a “substantive change in constitutional protections,” it must be remembered that RFRA was, itself, an effort by Congress to undo the harms it associated with a prior Supreme Court decision, Employment Division v. Smith, broadly viewed in America’s religious communities and by many religious liberties experts as having made a nullity of the Free Exercise Clause.

Smith involved an issue of unemployment compensation to two drug counselors dismissed from private employment when it was learned that they used peyote as part of Native American religious rituals. Earlier Supreme Court cases had provided a more genial construction of the Free Exercise Clause, under which the denial of such benefits would be subject to a severe form of constitutional review usually associated with rejection of the State’s position. In Smith, however, Justice Scalia set out a greatly narrowed interpretation of the Clause and of the Court’s own prior cases, leaving the unemployed drug counselors high and dry as to their compensation claims.

Three years after Smith, Congress acted, passing RFRA. President Clinton signed RFRA into law. RFRA bound the federal government and the States to the pre-Smith law and decisions, essentially rejecting the Court’s decision there. RFRA, in fact, created a statutory cause of action that had not previously existed as a means of vindicating religious freedom rights against the federal government, States and localities. It was the application of RFRA to the States that the Court found to be an overreach, based on its conclusion that it was a substantive enactment, rather than a remedial one.

Turning back to the PCUCPA, the questions asked in City of Boerne about RFRA must be asked about the House’s bill. Is it merely remedial? Or, does it create a new substantive right.

To ask the question is to answer it.

The Supreme Court has stuck fastidiously to its “central holding in Roe.” Justices O’Connor, Kennedy and Souter summarized that central holding this way:
It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.
If the PCUCPA is to be sustained by the Supreme Court, and if the Court will sift the Act and its purposes for a basis in the Enforcement Clause power of Congress, then the Court will, unless it abandons Planned Parenthood v. Casey (a development that I would welcome), evaluate the PCUCPA in light of Roe’s central holding. If it does, the Court will confront the contentious dispute over viability. Viability at 22 weeks, with appropriate medical treatment, was noted in a recent study covered by the New York Times here. (Lower federal courts continue to follow Casey and its Roe centrality reasoning. On May 27, 2015, the US Court of Appeals for the Eighth Circuit agreed with a federal trial court that a ban on abortions later than 12 weeks gestation violated Casey’s viability of the fetus holding.)

If the Court does as its own cases and history teaches us it will, then the Court is not likely to agree that Congress – by adopting the 20 week framework – is adhering to Roe’s central holding as to viability. On that basis alone, the Court would likely find the PCUCPA an overreach. To do otherwise would be to blink at Congress making a close judgment call on viability in an area of the law where the Court has acted the jealous guardian of the essential holdings of Roe.

While the Act, if it were to become law, would be a welcome stopgap provision of law in respect of its protection for one class of fetal children, it could no more be sufficient as a complete solution than could a Thirteenth Amendment that prohibited slavery only among those Africans aged 30 or older. Our history as a People tells us that what is needed to rebuke an error of Supreme proportions is more than stopgaps.

"Personhood," That is, Status as a Person in the Sense that "Person" is Used in the Constitution, Should be Resolved by the Constitution

If, at this point, I turn a critical eye to the Pain-Capable Unborn Child Protection Act, if I even suggest that it should not be the basket in which we place any of our eggs, let alone all of them, I do it solely because I find that the Act is a poor substitute for the proper response to the growing body of evidence that fetal children are capable of, and do experience, pain.

As an aside, so that you can measure my bona fides as a voice for life and against abortion, let me tell you about me.

  • I first articulated a pro-life opinion in public as a Senior in high school at Lejeune High School, (Class of 1976) in an Advanced Biology class taught by Debra Hansen. The position I held then flowed principally from a moral conclusion regarding the act of abortion. As I moved into my adult years, I read extensively about abortion, its causes, its methods, its impact. My moral judgment became seasoned with other, equally valid, grounds of justification for the conclusion that abortion is always wrong.
  • Soon, my opinion on abortion translated into action. I began speaking out against legalized abortion, including picketing and demonstrating at a local abortion facility here in Jacksonville, North Carolina. Eventually, in 1982, the rhetoric I and my brother, David Henderson, employed, resulted in a lawsuit against us for defamation by the owner of the abortion business. We prevailed. The defense of our constitutional rights of freedom of speech was accomplished by the North Carolina ACLU and by a newly founded organization, the Rutherford Institute. 
  • After we prevailed, my wife and I relocated to St. Louis University so that I could attend the Law School at St. Louis University. In hindsight, no better training ground exists for a pro-life advocate than an urban Catholic University in the process of surrendering its soul in pursuit of economic survival. The law school played welcoming host to a vocal pro-abortion element, embodied by the Women's Law Caucus. How hostile could Catholic law school be to pro-life expression? I once was called to an assistant dean’s office for posting a message on the student bulletin board comparing the Religious Coalition for Abortion Rights to Nazi apologists for the Holocaust. Ass. Dean Smith told me that my posting was "the most unprofessional thing he'd ever seen in the law school." Oddly, that was just days after two of my classmates were caught, in the act of copulation, on a classroom floor, by an adjunct professor arriving to teach an evening class!
  • Upon graduation, for the next twenty-five years, I practiced law with nonprofit organizations that regularly and consistently included as a segment of cases a variety of opportunities for me to represent pro-life activists and antiabortion demonstrators. In the process, I represented teens seeking protection from parents trying to force them to have abortions, protesters threatened with arrest for the messages on their signs, pregnancy resource centers threatened with the imposition of a duty to spread the pro-abortion messages of the government. If you have heard of Operation Rescue, Christian Defense Coalition, Randall Terry, Joseph Foreman, Jayne Bray, Michael Bray, Patrick Mahoney, Keith Tucci, Jeff White, Rob Schenck, Paul Schenck, Jeannie Hill, then you’ve heard of my clients, or some of them.

Because the PCUCPA is so unlikely to become law, I feel at liberty to observe that the Act is little more than window dressing on a macabre set piece: the more than two score years of legalized child killing in the United States. In the face of the horror, the grinding inhumanity, of our abortion culture, can it possibly be that the best that the House of Representatives can muster is a bill doomed to die aborning -- much like the offspring of an abortion bound woman -- before it can ever be born.

As a matter of our national history, the Civil War, a national bloodletting of nearly a half million lost lives and untold lost prosperity, was the method by which the Supreme Court's disregarding of the personhood of Africans was, ultimately, corrected.

The right answer to the ongoing holocaust of legalized abortion in America can be found in the historic response of the Congress, the States and the People to the previous erroneous decision of the Supreme Court in Dred Scott v. Sandford. That historic response consisted of three proposed amendments to the Constitution, which became the Thirteenth, Fourteenth and Fifteenth Amendments to the US Constitution.

In Dred Scott, the Supreme Court held that blacks were not, and could never be, citizens of the United States. For that reason, courts could not entertain lawsuits by blacks seeking a declaration that, due to their sojourn in Free States, they had acquired status as freedmen and could not, thereafter, again be subject to bondage. A civil war and nearly a half million lost lives later, the Nation repudiated the Supreme Court by ratifying the three amendments, ending slavery, guaranteeing an equal right to vote, and, under the Fourteenth Amendment, granting status as US citizens and State citizens to blacks.

Just over a century later, in Roe v. Wade, the Supreme Court likewise concluded that children before birth were not persons in the constitutional sense. For that reason, their own interest in securing their right to life and liberty, and the interests of the States in securing their rights to life and to liberty were completely discounted by the Supreme Court as against the woman's liberty interest in choosing to have an abortion.

In the intervening period, there have been very few shots fired, but so many more lives taken than were lost in the Civil War. Then, in his second inaugural address, Lincoln suggested that the Civil War was a judgment of God on this Nation, in which "every drop of blood drawn by the lash" would have to be answered by "one drawn by the sword." Ultimately, the Confederacy surrendered to the Union, and the three Civil War Amendments were propounded to the States by Congress and ratified by a sufficient number of States. With those amendments, the Constitution expressly read directly contrary to the view of it previously asserted by the Supreme Court in Dred Scott.

Our history regarding the constitutional status of blacks suggests that there are two sound answers to the illicit Roe v. Wade decision and its progeny. One answer could come from the Court. The Supreme Court could revisit and overturn Roe, thereby restoring to the States the power to regulate abortion or to prohibit it entirely. That has not happened, not in the more than forty years since the aberrant Roe decision.

There was a time when I, young and idealistic, thought the possibility of an internal correction by the Court could resolve the wrong of Roe. Nearly three decades have passed since I took up the practice of law in a public interest setting, with the hope that, by doing so, I would help to bring about that internal correction by the Court. In that time, I have made many trips to the Supreme Court. I have served as counsel in hundreds of cases representing those that oppose abortion through peaceful demonstrations. In a handful of instances, I represented younger women seeking protection from abortions being forced on them by parents. I also litigated against State and local criminal laws restricting free speech near abortion facilities, adopted by legislative bodies that treated abortion as though it were a holy sacrament. If the Court ever reverses course in this matter on its own, it will come as a great surprise to this no man who is no longer misguided by dreams.

Or, of course, the other answer could come from Congress, the States and the People. They could amend the Constitution in a manner that effectively overturns Roe. That effect was exactly the one gotten by the Fourteenth Amendment: reversal of a holding of the Supreme Court installing its wrong-headed interpretation of the language in the Constitution as the language of the Constitution. In Dred Scott, the Supreme Court said, "no," blacks are not citizens, and could never be citizens. A half million lost lives and nearly 80 billion dollars (present day value) of treasure later, the Nation bent the Supreme Court over its collective lap and gave it Fourteen spankings. The lesson lasted about as long as it took for the questions of "separate but equal" accommodations for blacks, WWII internment of Japanese Americans, and abortion to come before the Court.

So the certain way, the sure way, to end legalized abortion would be to amend the Constitution to expressly extend legal personhood status to fetal children. Article V of the Constitution sets out two methods of amending the Constitution. The Congress may initiate an amendment and send it to the States for ratification. In the alternative, the States may call on Congress to call a convention for proposing amendments to the Constitution. Congress could propose an amendment to the Constitution in the terms of the proposed Act.

Availability of the amendment process has not produced any change in the Constitution, however, since the decision in Roe v. Wade. How many millions more fetal Americans must be sacrificed on the altar of Supreme arrogance and ignorance before the Court's error is repudiated in a constitutional amendment ending the horror of abortion?

Missteps or Next Steps: Is this Federal Statute the Answer

I won't defer to others on the following point:

I am unapologetically anti-abortion and unashamedly pro-life. Given the ability to do so, if, like Obama, I could play emperor, I would make abortion always a prohibited criminal act. By the way, just as in history, I could do so without the prospect of women being tried for participating in the abortions of their own children.

Now, of course, criminalizing abortion can be justified from a religious, particularly Christian, perspective. "Suffer the little ones to come unto me, and forbid them not," after all, is one of the more memorable and kindly counsels that event ardent atheists recognize as a teaching of the Savior. When Mary, recently having become pregnant, visited her cousin, Elizabeth, who was pregnant with John the Baptist, Elizabeth reported to Mary that when Mary spoke, the child leapt in her womb. In Aramaic, she used the word, "blephos." That word means "child" or "little one." Still, while it suffices for people of the Christian faith that Jesus took a most solicitous view of the value of children, that perspective would not suffice to justify such a restriction in an irreligious, or religiously pluralistic society. While it constitutes a valid reason to criminalize abortion, it is not, by itself a sufficient one.

Criminalizing abortion can be justified from concern for the life and health of women that resort to abortion. Abortion is a violent physical assault on a woman. There is, after all, an atmospheric about the decision by the Republican Leadership to have held this vote on the day it chose. Kermit Gosnell, a licensed medical doctor, is in prison because he killed a woman as part of providing her with a safe legal abortion; a jury also convicted Gosnell of three separate counts of first degree murder because, after three infants were born alive during abortions, he cut their spinal cords, killing them. Abortion disrupts a natural process. Often, particularly later abortions, involve even more dangerous assaults on the woman's body to accomplish the killing of her child. There is little doubt that abortion never helps women. But in a society where genuine concern for women is portrayed as shameless chauvinism, that concern would not suffice.

The better ground on which abortion should be criminalized pertains to the civil and human rights of the fetal child. That ground is, in its essence, indistinguishable from the ground on which this Nation ultimately rejected the legality of enslaving others. Remember, the American experience with the Peculiar Institution of Slavery depended in large part on a view that blacks were not persons in the same sense that whites were. That view is the one expressed by Thomas Jefferson in his Notes on Virginia. There he wrote, “I advance it as a suspicion only, that the blacks, whether originally a distinct race, or made distinct by time and circumstances, are inferior to the whites in the endowments both of body and mind."

In the same fashion, though by different terminology, abortion advocates have denigrated the separate and equal status of fetal humans as persons. They denigrate the personhood of fetal children in both biological and constitutional senses. As to the former, arguments for abortion that dispute the biological evidence for the fetal child's separate existence and identity have hung on long after the medical and biological evidence resolved those questions in favor of the humanness and separate existence of the fetal child.

Frankly, the persistence of that view as a matter of biology is decided in conflict with science, as testimony going back to the Senate's Hearings on S. 158, "The Human Life Bill," established. What remains then, is an argument derived from Roe v. Wade's judicial usurpations, that fetal children are not persons, at least not persons in a constitutional sense. That the Court necessarily rejected the personhood of the fetal child as part of deciding Roe v. Wade is no more dispositive there than was the Supreme Court's determination in Roe that blacks are not persons, but chattel goods.

Ultimately, as our national history showed, the one sure way to end slavery, the sure means of tattooing equality regardless of race or national origin on the skin of our governmental framework was to amend the Constitution. I have no remaining doubt that amending the Constitution is the only adequate and complete remedy to the current injustice of legalized abortion.

The House Concludes: Unborn Children Experience Pain

Why shouldn't Republicans in Congress welcome the opportunity to flush out the pro-abortion extremism of their House Democratic colleagues? That welcome effect of the debate and vote doesn't entirely explain the Pain-Capable Unborn Child Protection Act (“PCUCPA”). There is, more importantly, the deeply disconcerting knowledge that all that hacking, chopping, saline boiling, heart puncturing, and collapsing of craniums that abortionists do is being inflicted on fetuses that can and do experience pain, and, in fact, may experience pain more severely than do newborns and infants.

A review of the findings of fact contained in the Act confirms that the House acted because of its conclusion that facts existed on which it could make a judgment that abortions after 20 weeks gestation. Key findings of fact by the House include:
"(1) Pain receptors (nociceptors) are present throughout the unborn child's entire body and nerves link these receptors to the brain's thalamus and subcortical plate by no later than 20 weeks after fertilization.
(2) By 8 weeks after fertilization, the unborn child reacts to touch. After 20 weeks, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult human, for example, by recoiling. 
(3) In the unborn child, application of such painful stimuli is associated with significant increases in stress hormones known as the stress response. 
.... 
(11) Consequently, there is substantial medical evidence that an unborn child is capable of experiencing pain at least by 20 weeks after fertilization, if not earlier."
The House made findings as part of the Act. Those findings, in turn, find substantial support in testimony from a source of apparent significant credibility. A decade ago, Congress enacted the Partial Birth Abortion Ban Act of 2003. Two constitutional challenges soon followed in federal courts. Those challenges, successful in trial courts, ultimately led to the Supreme Court's decision sustaining the constitutionality of the PBABA. At trial, the evidence offered supporting the PBABA included the testimony of  Dr. Kanwaljeet S. Anand, Regarding that testimony, the federal trial court in New York City said the following:
The Court finds that the testimony at trial and before Congress establishes that D&X is a gruesome, brutal, barbaric, and uncivilized medical procedure. Dr. Anand's testimony, which went unrebutted by Plaintiffs, is credible evidence that D&X abortions subject fetuses to severe pain. Notwithstanding this evidence, some of Plaintiffs' experts testified that fetal pain does not concern them, and that some do not convey to their patients that their fetuses may undergo severe pain during a D&X.
That the Court stated its finding thus is particularly significant because, despite finding that the evidence established "severe pain" being experienced by "fetuses," the Court still concluded that the PBABA violated the liberty interests of women in access to abortion procedures. Had the Court made that finding and struck down the statute, partisans might have accredited the decision to a bias on the part of the Court regarding the statute. There, however, the Court's bias -- if one existed -- favored the liberty interest in women over the power of Congress to restrict abortions using a procedure it acknowledged caused severe pain to fetuses.

The issue of pain in the fetus is not without a skin of controversy. In "A Systematic Multidisciplinary Review of the Evidence," published in the Journal of the American Medical Association, a lawyer and three doctors conducted a review of studies on pain in fetuses. The survey is accessible and fairly understandable. They conclude:
Because pain perception probably does not function before the third trimester, discussions of fetal pain for abortions performed before the end of the second trimester should be noncompulsory. Fetal anesthesia or analgesia should not be recommended or routinely offered for abortion because current experimental techniques provide unknown fetal benefit and may increase risks for the woman.
The survey gained some notice in media, probably because it was carried as an article in JAMA. What the authors of the article did not disclose to the editors of JAMA, however, was a record of pro-abortion activism that might reasonably be interpreted as influencing the selection of studies reviewed and reported by the article.

The National Right to Life Committee prepared a rebuttal to the study. You can find it here. A damning segment of the NRLC rebuttal connects the study's authors pro-abortion advocacy:
9. The lead author of the article, Susan J. Lee, who is now a medical student, was previously employed as a lawyer by NARAL, the pro-abortion political advocacy organization (Knight Ridder, August 24).
10. One of Lee's four co-authors, Dr. Eleanor A. Drey, is the director of the largest abortion clinic in San Francisco (San Francisco Chronicle, March 31, 2004, and Knight Ridder, August 24, 2005). According to Dr. Drey, the abortion facility that she runs performs about 600 abortions a year between the 20th and 23rd weeks of pregnancy (i.e., in the fifth and sixth months). (San Francisco Chronicle, March 31, 2004) Drey is a prominent critic of the Partial-Birth Abortion Ban Act, and a self-described activist. (In a laudatory profile in the newsletter of Physicians for Reproductive Choice and Health, September 2004, it was noted that "much of Dr. Drey's research centers on repeat and second-trimester procedures . . .," and quotes Drey as saying, "I am very lucky because I get to train residents and medical students, and I really do feel that it's a type of activism.") Drey is also on the staff of the Center for Reproductive Health Research and Policy (CRHRP) at the University of California, San Francisco -- a pro-abortion propaganda and training center. [] 
11. However, one reporter (Knight Ridder's Marie McCullough) did contact JAMA editor-in-chief Catherine D. DeAngelis regarding the ties of Lee and Drey. McCullough reported that DeAngelis "said she was unaware of this, and acknowledged it might create an appearance of bias that could hurt the journal's credibility. 'This is the first I've heard about it,' she said. 'We ask them to reveal any conflict of interest. I would have published' the disclosure if it had been made." (Knight Ridder, August 24, 2005) A day later, DeAngelis told USA Today that the affiliations of Drey and Lee "aren't relevant," but again said that the ties should have been disclosed. If she really thought the affiliations were not relevant, why would she say that they should have been disclosed? If a review of the same issue by doctors employed by pro-life advocacy groups had been submitted or published, would those affiliations have been ignored by journalists?  
12. Dr. David Grimes, a vice-president of Family Health International, has been relied on by CNN, the New York Times, and some other media as a purported expert to defend the paper. Dr. Grimes has made pro-abortion advocacy a central element of his career for decades. (During the time he worked for the CDC in the 1980s, his off-hours work at a local late-abortion facility sparked protests from some pro-life activists.  In 1987, a year after he left the CDC, Grimes testified that he had already performed more than 10,000 abortions, 10 to 20 percent of those after the first trimester.) In addition, Grimes was previously the chief of the Department of Obstetrics, Gynecology and Reproductive Sciences at the San Francisco General Hospital -- the very same institution where author Drey directs the abortion clinic.
Still, these criticisms, while revealing of researcher bias, tend toward ad hominem and do not, by themselves, resolve the questions of fetal pain.

Dr. Anand's testimony serves as a clear, highly experienced, and expert source on the question of fetal pain. In his corner, among other voices, there is the British Journal of Obstetrics and Gynaecology. In a 1999 issue of BJOG, another review on fetal pain concluded as follows:
The assessment of whether or when the fetus is likely to feel pain has to be based on an evaluation of the available anatomical and physiological evidence. The physical system for nociception is present and functional by 26 weeks and it seems likely that the fetus is capable of feeling pain from this stage. The first neurones to link the cortex with the rest of the brain are monoamine pathways, and reach the cortex from about 16 weeks of gestation. Their activation could be associated with unpleasant conscious experience, even if not pain. Thalamic fibres first penetrate the subplate zone at about 17 weeks of gestation, and the cortex at 20 weeks. These anatomical and physiological considerations are important, not only because of immediate suffering, but also because of possible long term adverse effects of this early experience.
The technical summary led to the following pithy and, honestly, piteous appeal:
The eighteenth century philosopher, Jeremy Bentham, wrote of animals The question is not Can they reason?, not Can they talk?, but Can they suffer?. This caused a change in attitude towards animals and their treatment that is continuing to day, such that in the UK, even frogs and fishes are required by Act of Parliament to be protected by anaesthesia from possible suffering due to invasive procedures. Why not human beings?
Indeed, why not human beings?

Perhaps not human beings because, among the feral lot of us, there are so many Obamas, so many Wasserman Schultzes, panderers to the lowest urges, who recognize no point in time when a child is too like us to accept the unrestrained brutality of abortion, when a method is too barbaric to tolerate its application as the solution to the problem. Obama's take on abortion is found in his remarks on the 38th anniversary of the Supreme Court's decision in Roe v. Wade:
Today marks the 38th anniversary of Roe v. Wade, the Supreme Court decision that protects women's health and reproductive freedom, and affirms a fundamental principle: that government should not intrude on private family matters. I am committed to protecting this constitutional right.
Wasserman Schultz, no doubt, has an answer to the question why not protect fetal Americans from possible suffering due to abortion procedures. For Wasserman Schultz and her cohorts, the only justifiable restriction on abortion is found in the subjective judgments of abortion-bound women. Any federal statutory imposition might be taken as an expression of distrust of women's judgments about such matters, and that, in Wasserman Schultz's schema is the unpardonable sin.