Prior to the Supreme Court’s decision upholding the ban in 2007, to which we will return in a moment, there were various federal court trials in which abortion supporters tried to claim that the ban was unconstitutionally vague and over-broad, because some of the other abortion procedures were in fact so similar to the one being banned that the doctor would not know whether he had committed illegal activity or not.
But to make this argument, the abortion supporters had to have practicing abortionists testify, under oath, as to the details of these various abortion procedures, not only the partial-birth abortion, but also the D and E (dismemberment) abortion. In this very testimony, the public, the legislators, and the courts had the most powerful education ever about the gruesome details of abortion, and this education has led people away from unqualified support of abortion.
In particular, the whole consideration of fetal pain became part of the discussion and has led to further legislative developments. Consider the following exchange that took place in U.S. District Court, Southern District of New York, between Judge Richard Casey and abortionist Timothy Johnson. (Johnson was testifying in the case National Abortion Federation, et. al. v. Ashcroft, which dealt with the ban on partial-birth abortion. The date was March 31, 2004.):
THE COURT: If you are all finished let me just ask you a couple questions, Dr. Johnson. I heard you talk a lot today about dismemberment D&E procedure, second trimester; does the fetus feel pain?
THE WITNESS: I guess I —
THE COURT: There are studies, I m told, that says they do. Is that correct? …
THE WITNESS: I’m aware of fetal behavioral studies that have looked at fetal responses to noxious stimuli.
THE COURT: Does it ever cross your mind when you are doing a dismemberment?
THE WITNESS: I guess whenever I —
THE COURT: Simple question, Doctor. Does it cross your mind?
THE WITNESS: Does the fetus having pain cross your mind?
THE COURT: Yes.
THE WITNESS: No.
THE COURT: Never crossed your mind.
THE WITNESS: No.
While fetal pain doesn’t cross the mind of the abortionist, it is more and more on the minds of legislators and the public. In the last few years, ten of the states in the USA have passed laws protecting unborn children from 20 weeks of development forward, based on the strong scientific consensus that by that time the baby feels pain. And even on the federal level, the US House of Representatives passed the same measure, though the Senate has yet to vote on it. The courts have recognized that the states have interests in protecting life in the womb, and in fact can define for themselves what those interests are. In this case, the stated interest is to protect unborn children from pain.
Abortion advocates want abortion to have the privileged status accorded by Courts to freedom of speech and freedom of religion. Abortion advocates insist that courts use very strict standards for constitutional review of any legislative efforts to respect unborn human life, and that if a law regulating abortion might be unconstitutional even in a rare and hypothetical circumstance, the whole law should be thrown out. In its 2007 Gonzales decision upholding the ban on partial-birth abortion, the US Supreme Court rejected this approach. The Court sent the message that it will not strike down abortion regulations simply because they are abortion regulations. Nor can the courts strike down abortion laws based merely on abortion proponents’ speculative claims. The Court reaffirmed that states have legitimate interests in protecting fetal life and the health of women.