Most people prefer not to inflict gratuitous pain on other sentient beings, especially other humans. What, then, should be the legal system's reaction to the mounting evidence that in late-term abortions doctors are inflicting just such pain on fetuses who have the anatomical, physiological, and neurological capacity to experience it? The pain being inflicted is gratuitous because it can be easily avoided with no significant increases in cost or health risk by the administration of tar geted fetal pain relief. If informed that an abortion is likely to cause pain to the fetus and given a choice between a procedure that would inflict fetal pain and a slightly more expensive but safe procedure that would not do so, would not most women facing a late-term abortion choose the latter? Such is the premise of this Note, which argues that states should pass legislation to decrease the gratuitous infliction of pain in late-term abortions. Legislation is necessary for informed choice on this matter because most women are not given the choice to make for themselves. Legislation is appropriate because "[t]he State's constitutional author ity is a vital means for citizens to address [the] grave and serious issues [surrounding abortion], as [we] must if we are to progress in knowledge and understanding and in the attainment of some degree of consensus." Part I of this Note describes the scientific evidence supporting the claims that the human fetus may experience pain as early as the thirteenth week of development, probably experiences pain by the twentieth week, and almost definitely experiences pain by the twenty-eighth week. Part II argues that legislation to address fetal pain during late term abortions is necessary because physicians performing such procedures usually do not treat fetal pain as a distinct problem and there fore typically do not provide women with the option of fetal pain relief. Part III discusses legal and prudential considerations relevant to the design of such legislation and concludes with proposed model legis lation. Part IV explains why the proposed legislation passes constitutional muster. Part V explores the politics of fetal pain in light of the constitutive function of the law.
Kevin C. Walsh, The Science, Law, and Politics of Fetal Pain Legislation, 115 HARV. L. REV. 2010 (2002).