Fetal Pain Legislation: Is it Viable?

Whether a human fetus experiences pain during an abortion has been the subject of heated debate within medical, legal, and political circles for over two decades. In the 1980\u27s President Reagan\u27s statement that when the lives of the unborn are snuffed out [by abortion], they often feel pain, pain that is long and agonizing, and the release of a controversial film entitled The Silent Scream were merely two of the events that kept this issue in public view. Federal and state legislative efforts to enact partial birth abortion bans have reignited public debate over fetal pain. Three years ago, the argument intensified when the world caught a glimpse of life within the womb through the picture of Samuel Armas\u27 tiny hand apparently grasping the finger of the perinatal surgeon who was repairing the spine of the twenty-one week old fetus. As the twenty-first century begins, there are some indications that advances in medical knowledge are resolving the debate in medical circles surrounding fetal pain, and the resolution favors its acknowledgment at some point prior to birth. The purpose of this article is to explore the nature and extent of the medical community\u27s emerging consensus on the issue of fetal pain, and consider whether this consensus should be reflected in American law. Part I discusses the current state of medical knowledge regarding fetal experiences of pain. Part II describes recent changes in medical standards to acknowledge the possibility of fetal pain. The legal status of laws directed at minimizing or protecting the human fetus from pain under the United States Constitution is discussed in Part III. Common objections to fetal pain legislation are identified and answered in Part IV. This article concludes with a call for legal requirements that women seeking abortions be informed of the possibility that the fetus may experience pain after twelve weeks gestation, and offered fetal anesthetic or modified abortion procedures to minimize any possibility of fetal pain