Ban on abortion after 20 weeks may pass Texas Senate, but will it survive the courts?

On July 11, a Texas Senate committee approved the House-backed bill that would ban abortion after 20 weeks of pregnancy, reports LifeNews. A final Senate vote could take place today.

In addition to the ban, the bill would also require:
  • Basic health and safety standards for abortion clinics
  • Abortion clinics to have the same health and safety standards as ambulatory service centers
  • Doctor who provides abortions to have admitting privileges to a nearby hospital
  • Doctor to administer abortion-inducing drugs, not someone else in the clinic

The science behind the bill

The leading researcher in fetal pain is Dr. Steven Zielinski, an internal medicine physician from Oregon. According to research performed with his colleagues, pain can be felt very early in a child’s development:

"Functioning neurological structures necessary for pain sensation are in place as early as 8 weeks, but certainly by 13 1/2 weeks of gestation. Sensory nerves, including nociceptors, reach the skin of the fetus before the 9th week of gestation. The first detectable brain activity occurs in the thalamus between the 8th and 10th weeks. The movement of electrical impulses through the neural fibers and spinal column takes place between 8 and 9 weeks gestation. By 13 1/2 weeks, the entire sensory nervous system functions as a whole in all parts of the body."

Will it survive the courts?

Texas Gov. Rick Perry convened a special session of the legislature to pass this bill after a mob prevented the vote last week. From the looks of it this time around, it may very well pass. So the question is: Will it survive in the courts? According to USA Today, a federal lawsuit is the next logical step.

As Sen. Wendy Davis said after deciding not to perform another filibuster, "I don't think it's the end. It's the beginning of a battle line."

One Republican, Houston Rep. Sarah Davis, opposed the bill, offering an amendment to make it less stringent, since she believes it is unconstitutional as it is.

"I believe the bill as drafted will be a de facto ban on abortion," she said in the article. "No one wants to see abortions, it's a terrible way to end a pregnancy, but it is a constitutionally protected right."

This, of course, stems from the 1973 Roe v. Wade decision. As explained in an April 14 OSV Newsweekly article about a recently passed North Dakota heartbeat bill, the case established three rights: right to privacy, right of the state to protect the life and health of the mother, and right of the state to protect potential life.

Roe v. Wade determined how to balance these three rights. The right of the state to protect potential life was not considered strong enough until "viability," when the child can live outside the womb (then seen as 24 weeks). With modern technology, "viability" can reasonably be moved to 20 weeks, if not earlier.

According to the LifeNews article, Dr. Colleen A. Malloy, assistant professor of the Division of Neonatology at Northwestern University, testified: "In today's medical arena, we resuscitate patients at this age and are able to witness their ex-utero growth and development. Medical advancement and technology have enabled us to improve our ability to care for these infants … In fact, standard of care for neonatal intensive care units requires attention to and treatment of neonatal pain."

Maybe it will stand.

Jennifer Rey is the web editor of Our Sunday Visitor Publishing.