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On April 13, 2010, the Nebraska Legislature passed the “Pain-Capable Unborn Child Protection Act,” LB 1103, which Gov. Dave Heineman signed into law the same day. The Act, which was drafted by attorneys for the National Right to Life Committee (NRLC), prohibits virtually all abortions during and after the twentieth week of gestation. The twentieth week of gestation was selected because that is the stage of pregnancy when, according to the Act’s findings of fact, the unborn child has all of the anatomical and neurological structures in place to experience pain.

The Act was aimed at the practice of Leroy Carhart, a physician who has performed late-term abortions in Nebraska for many years. In earlier litigation, Dr. Carhart successfully challenged Nebraska’s attempt to ban partial-birth abortions, Stenberg v. Carhart, 530 U.S. 914 (2000) (Carhart I), and unsuccessfully challenged the federal Partial-Birth Abortion Ban Act, Gonzales v. Carhart, 550 U.S. 124 (2007) (Carhart II). Much to the surprise of the drafters of the “Pain-Capable Unborn Child Protection Act,” its sponsors, and many others, Dr. Carhart did not challenge the Act, even though it would clearly appear to violate the Supreme Court’s determination in Roe v. Wade, 410 U.S. 113 (1973), as reaffirmed in relevant part in Planned Parenthood v. Casey, 505 U.S. 833 (1992), that viability, and not any earlier stage in pregnancy, marks the constitutional frontier which no state may cross in prohibiting abortion. Rather than challenge the Act, Dr. Carhart moved his late-term abortion practice to Maryland, where there is little or no chance of the legislature enacting a similar bill. (Dr. Carhart also announced that he will be performing abortions, at an earlier stage of pregnancy, in Indiana and Iowa.)

On the heels of Dr. Carhart’s refusal to challenge the Act, a number of other states, encouraged by NRLC and its affiliates, are considering similar legislation. Americans United for Life has also gotten into the act with their “Women’s Health Defense Act,” which, like NRLC’s model legislation based on the Nebraska Act,  prohibits abortion during and after the twentieth week of gestation. The purpose of this article is to suggest why pro-life legislators, lawyers, lobbyists, and activists may wish to think twice before pursuing such legislation.

It is undisputed that, at twenty weeks’ gestation, the overwhelming majority of unborn children are not viable, i.e., capable of sustained survival outside of the womb, with or without medical assistance. Viability usually occurs somewhat later in pregnancy, at the twenty-third or twenty-fourth week, although a few unborn children may attain viability earlier and others still later, depending upon their body weight, size, and lung development. Statistics on the numbers of abortions performed during the second half of pregnancy (during or after the twentieth week of gestation) reveal, not surprisingly, that far more abortions are performed toward the beginning of this period than later. That, in turn, means that most of the abortions that would be affected by the Nebraska Act (or similar legislation) would be performed on unborn children who are not viable. Would such a prohibition be constitutional? The answer to this question would seem to be a resounding “No.”

In Roe v. Wade, the Supreme Court held that the state’s “important and legitimate interest in potential life” does not become “compelling,” and, therefore, sufficiently weighty to justify an abortion prohibition, until “viability.” 410 U.S. at 163. “This is so,” the Court explained, “because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.” Id. Thus, “if the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.” Id. at 163-64. The Court restated this holding in summarizing its opinion: “For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Id. at 164-65.

There is no doubt that, under Roe, the Pain-Capable Unborn Child Protection Act is unconstitutional, at least with respect to its application to pre-viability abortions (whether its post-viability applications are constitutional presents a different question, which is briefly discussed later in this article). Moreover, Roe’s holding, that the states may not prohibit abortion before viability, with or without exceptions, was reaffirmed by the Supreme Court 19 years later in Planned Parenthood v. Casey (1992). In the Joint Opinion authored by Justices O’Connor, Kennedy and Souter, the Court held that “before viability, the State’s interests are not strong enough to support a prohibition of abortion . . . .” 505 U.S. at 846. See also, id., at 860 (“viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on non-therapeutic abortions”) (emphasis added); 872 (“the woman has a right to choose to terminate or continue her pregnancy before viability”). In summarizing its holdings, the Joint Opinion stated: “Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” Id. at 879. The holding in Roe, that the states may not prohibit abortion before viability, which was reaffirmed in Casey, would not appear to leave any room for a ban on abortion before viability. Both Roe’s viability holding and Casey’s reaffirmation of that holding were supported by a majority of the Court in each case. So, what (or who) has changed?

Supporters of Nebraska’s legislation and the model bill based upon it (and the same goes for advocates of AUL’s Women’s Health Defense Act) pin their hopes on Justice Kennedy, who, along with Chief Justice Roberts and Associate Justices Scalia, Thomas, and Alito, supposedly would make up a majority on the Court to uphold the Act. Indeed, Matt Boever, legal counsel to Sen. Mike Flood, the principal sponsor of the Nebraska “pain” bill, candidly admitted that “LB 1103, if upheld, would require Justice Kennedy and the Court to overrule the precedent in Casey that there is a constitutional right to choose an abortion before viability.” Assuming that both the Chief Justice and Justice Alito would be “on board” for such a decision (which, in the author’s opinion, is not at all certain), proponents of the Act would still need to garner Justice Kennedy’s vote because, as they recognize, Justices Ginsburg, Breyer, Sotomayor, and Kagan would most likely vote to strike down the Act.

It is remarkable that they would believe they could attract Justice Kennedy’s vote, in light of the fact that he was one of three authors of the Joint Opinion in Casey reaffirming the viability holding of Roe. Based upon Justice Kennedy’s passionate dissent in the first partial-birth-abortion-ban case, Carhart I, and his majority opinion for the Court upholding the federal Partial-Birth Abortion Ban Act seven years later in Carhart II, supporters of the “pain” bill (or similar “model” legislation banning abortion at twenty weeks) believe that he would recognize a state interest in the unborn child’s ability to experience pain that would sustain the constitutionality of the Act. But this belief is naïve and dangerous.

In both his dissent in Carhart I and his majority opinion in Carhart II, Justice Kennedy expressed the view that the states have legitimate interests in regulating the practice of abortion that go beyond their recognized interests in protecting maternal health and preserving the life of the unborn child. In Carhart I, Justice Kennedy rejected Dr. Carhart’s interpretation of Supreme Court precedent that “the only two interests the State may advance through regulation of abortion are . . . the health of the woman who is considering the procedure and . . . the life of the fetus she carries.” Carhart I, 530 U.S. at 960 (Kennedy, J., dissenting). He identified three additional state interests, concern for the life of the unborn and “for the partially born,” “preserving the integrity of the medical profession” and “erecting a barrier to infanticide.” Id. at 961 (summarizing the State’s argument).

With respect to the first two interests, Justice Kennedy said that the “States . . . have an interest in forbidding medical procedures which, in the State’s reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus.” Id. “A State may take measures to ensure the medical profession and its members are viewed as healers, sustained by a compassionate and rigorous ethic and cognizant of the dignity and value of human life, even life which cannot survive without the assistance of others.” Id. at 962.

With respect to the third interest, Justice Kennedy stated that “Nebraska was entitled to find the existence of a consequential moral difference between the procedures [conventional dilation and evacuation (or D&E), in which the unborn child is dismembered in the course of the abortion procedure, and dilation and extraction (or D&X), in which the child is killed after it has been partially delivered, intact].” Id. “D&X’s stronger resemblance to infanticide means [that] Nebraska could conclude [that] the procedure presents a greater risk of disrespect for life and a consequent greater risk to the profession and society, which depend for their sustenance upon reciprocal recognition of dignity and respect.” Id. at 963. Writing for the Court in Carhart II, Justice Kennedy reiterated these themes. See Carhart II, 550 U.S. at 156-60 (law was aimed at preventing the devaluation of human life, maintaining the ethics of the medical profession and establishing a bright line between abortion and infanticide).

Supporters of the Pain-Capable Unborn Child Protection Act point to the foregoing statements of Justice Kennedy as evidence that he would, first, recognize the unborn child’s ability to experience pain as a legitimate basis for state regulation of abortion and, second, uphold a prohibition of abortion, even one that applied before viability, that was based on that interest. For purposes of this article, the author assumes (without necessarily agreeing with) the first proposition. Does the second proposition follow? Decidedly not.

As an initial observation, it must be emphasized that neither the first nor the second partial-birth-abortion-ban case concerned an abortion prohibition. Rather, both involved an abortion procedure ban that, in Justice Kennedy’s view, left other procedures unaffected. In both his dissent in Carhart I, 530 U.S. at 972-79, and his majority opinion in Carhart II, 550 U.S. at 150-56, Justice Kennedy went to great pains to explain why the statutes in question did not affect the legality of the most commonly used second-trimester abortion technique (conventional D&E), acknowledging that the statutes would be unconstitutional if they effectively prohibited conventional D&Es. That the prohibition of partial-birth abortion was not an abortion ban, but an abortion procedure ban, was critical to his analysis. Thus, in the second paragraph of his dissent in Carhart I, Justice Kennedy stated: “The Court’s decision today . . . invalidat[es] a statute advancing critical state interests, even though the law denies no woman the right to choose an abortion and places no undue burden upon the right.” 530 U.S. at 957 (emphasis added). Later in his dissent, he stated that “as an ethical and moral matter D&X is distinct from D&E and is a more serious concern for medical ethics and the morality of the larger society the medical profession must serve.” Id. at 963. Immediately following this sentence, however, Justice Kennedy added: “Nebraska must obey the legal regime which has declared the right of the woman to have an abortion before viability.” Id. at 963-64 (emphasis added).

In Carhart II, the Court “assumed” the continuing validity of “the principles set forth in the joint opinion” in Casey. Carhart II, 550 U.S. at 146 (the Court “assumed” the validity of those principles only because two justices who joined the majority opinion in Carhart II—Justices Scalia and Thomas—had dissented from the reaffirmation of Roe in Casey, not because Justice Kennedy, who authored the majority opinion in Carhart II, had second thoughts about the Joint Opinion he co-authored in Casey). The first “principle” of Casey, Justice Kennedy stated, is that, “before viability, a State ‘may not prohibit any woman from making the ultimate decision to terminate her pregnancy.’” Id. (quoting Casey, 505 U.S. at 879). The second “principle” is that a state “may not impose upon this right an undue burden, which exists if a regulation’s ‘purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’” Id. (quoting Casey, 505 U.S. at 878). And the third “principle” is that the State may adopt “‘regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn . . . , if they are not a substantial obstacle to the woman’s exercise of the right to choose.’” Id. (quoting Casey, 505 U.S. at 877. Justice Kennedy concluded his summary of Casey by noting that, in Casey, the Court “struck a balance. The balance was essential to its holding.” Id. (emphasis added).

In light of the foregoing statements of Justice Kennedy in Carhart I and Carhart II, it is clear that he continues to adhere to the Joint Opinion in Casey. Indeed, in Carhart II, he recognized that the federal Partial-Birth Abortion Ban Act “would be unconstitutional ‘if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’” 550 U.S. at 156 (quoting Casey, 505 U.S. at 878). Thus, even if one assumes that the state has a legitimate interest in regulating abortion at a stage of pregnancy when the unborn child is capable of experiencing pain, that interest is not strong enough to sustain a statute prohibiting abortion before viability.

Two other considerations militate against the conclusion that the states may prohibit abortion whenever the unborn child is able to experience pain. First, as a matter of simple logic, the state’s interest in preserving the life (or, to use Roe’s lexicon, “potential” life) of the unborn child is obviously weightier than any asserted interest in avoiding pain. But, under Roe, as reaffirmed in part in Casey, the state’s interest in preserving the life of the unborn child is not strong enough to support a prohibition of abortion before viability. So, on what basis could a lesser interest sustain a prohibition of abortion before viability?

Second, if the state has an interest in preventing pain to the unborn child during an abortion procedure, a ban on all abortions at the stage of pregnancy when the child is capable of experiencing pain is obviously overkill. The state’s interest could be achieved by a far less draconian measure, simply requiring pain alleviation. But that is precisely the direction that neither NRLC’s Pain-Capable Unborn Child Protection Act nor AUL’s Women’s Health Defense Act takes.

Supporters of these bills fail to come to grips with these unequivocal statements of Justice Kennedy, which leave no doubt that he would not vote to uphold a “pain” bill that prohibited abortions before viability. There is, however, a further problem with the “pain” bill, and that is based on Justice Kennedy’s view, expressed in both Carhart I, 530 U.S. at 964-72, and Carhart II, 550 U.S. at 161-67, that the states may legislate in the area of abortion on the basis of something short of unanimous medical opinion.

In Carhart I, taking issue with the majority’s reliance on Dr. Carhart’s opinion that, at least in some cases, the D&X (“partial-birth”) method of abortion was the safest for the woman, Justice Kennedy responded that “the question here is whether there was substantial and objective medical evidence to demonstrate [that] the State had considerable support for its conclusion that the ban created a substantial risk to no woman’s health.” 530 U.S. at 969. Stated more simply, “the State is entitled to make judgments where high medical authority is in disagreement.” Id. at 969-70. In Carhart II, Justice Kennedy, noting that the Court “has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty,” concluded that the Partial-Birth Abortion Ban Act “is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman’s health, given the availability of other abortion procedures that are considered to be safe alternatives.” 550 U.S. at 163, 166-67.

It was apparently in reliance upon such statements that Nebraska’s Pain-Capable Unborn Child Protection Act includes legislative findings that “at least by twenty weeks after fertilization there is substantial evidence that an unborn child has the physical structures to experience pain,” and that “there is substantial evidence that, by twenty weeks after fertilization, unborn children seek to evade certain stimuli in a manner which in an infant or an adult would be interpreted as a response to pain.” LB 1103, §§ 3(1), (2). In light of these (and other) findings, Nebraska asserted a “compelling state interest” in “protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.” Id., § 3(5).

If “substantial medical evidence” that an unborn child is capable of experiencing pain during or after the twentieth week of gestation is sufficient to support the constitutionality of the Pain-Capable Unborn Child Protection Act, then it necessarily follows that an Act prohibiting abortion before the twentieth week also would be constitutional if it was supported by “substantial medical evidence” that the unborn child was capable of experiencing pain. In one of its legislative findings not quoted above, the Nebraska Legislature noted that “even before twenty weeks after fertilization, unborn children have been observed to exhibit hormonal stress responses to painful stimuli. Such responses were reduced when pain medication was administered directly to such unborn children.” LB 1103, § 3(4). Some physicians believe that the unborn child is capable of experiencing pain at a much earlier stage of pregnancy than the twentieth week of gestation. Indeed, the “model” act based on the Nebraska legislation is quite explicit on this point. In its proposed “legislative findings,” the model act finds that “pain receptors (nociceptors) are present through the unborn child’s entire body no later than 16 weeks after fertilization and nerves link these receptors to the brain’s thalamus and subcortical plate by no later than 20 weeks,” that “by 8 weeks after fertilization, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult human, for example by recoiling,” and that “in the unborn child, application of such painful stimuli is associated with significant stress hormones known as the stress response.” NRLC Pain-Capable Unborn Child Protection Act Model, §§ 3(1), (2), (3).

Under the rationale used to support the constitutionality of the Nebraska Act, if there is, in Justice Kennedy’s words, “substantial and objective medical evidence” that the unborn child is capable of experiencing pain before the twentieth week (sixteen weeks or even eight weeks, as suggested in NRLC’s model act), then a ban on all abortions at that stage of gestation also would be constitutional. The Court cannot uphold the Nebraska Act (or model legislation based upon that Act) without opening the door to other “pain” legislation that would prohibit abortion at much earlier stages of gestation. Entirely apart from the constitutional considerations already mentioned, it is highly implausible that either the Court or Justice Kennedy would accept the unborn child’s ability to experience pain as a substitute for (or in addition to) viability as the (or a) criterion for determining the states’ authority to prohibit abortion when that ability may be present much earlier in pregnancy than the twentieth week of gestation.

Those who believe that Justice Kennedy would be a possible vote to uphold an abortion ban that reached pre-viability, as well as post-viability, abortions necessarily have to ignore or “explain away” Justice Kennedy’s unequivocal writings on the subject—in Casey, Carhart I and Carhart II--that the States may not prohibit abortion before viability. But there is other evidence that Justice Kennedy would not back down from what he co-authored in Casey. For example, in Leavitt v. Jane L., 520 U.S. 1274 (1997), the Supreme Court refused to review a decision of the United States Court of Appeals for the Tenth Circuit, Jane L. v. Bangerter, 102 F.3d 1112 (10th Cir. 1996), declaring unconstitutional a statutory provision banning abortion after the twentieth week of gestational age (as measured from the date of conception). Even though the ban applied at a slightly later stage of pregnancy than the Pain-Capable Unborn Child Protection Act, and permitted abortions for a broader range of reasons (life-of-the-mother, “grave danger” to the pregnant woman’s “medical health,” and fetal anomaly), neither Justice Kennedy nor any other justice dissented from the denial of review. Again, in both Ada v. Guam Society of Obstetricians & Gynecologists, 506 U.S. 1011 (1992), and Voinovich v. Women’s Medical Professional Corp., 523 U.S. 1037 (1998), Justice Kennedy did not dissent from the Supreme Court’s refusal to review the constitutionality of the post-viability applications of an abortion ban (Ada) or a post-viability ban itself (Voinovich), which may suggest that he is even less open to reviewing an abortion ban that applies before viability.

In light of the foregoing analysis, it is (or should be) apparent that there is no realistic possibility that Justice Kennedy would vote to uphold an abortion prohibition that reached pre-viability, as well as post-viability, abortions, regardless of the reasons asserted in support of such a prohibition. To believe otherwise is, in the author’s opinion, naïve. It is also dangerous. If a case challenging an act like the Nebraska Pain-Capable Unborn Child Protection Act (or the Women’s Health Defense Act) actually reached the Supreme Court, a majority of the Court would most likely use the case to reaffirm Roe v. Wade, as modified by Casey. It is certainly not in the interest of the pro-life movement to precipitate litigation that could result in yet another decision of the Supreme Court further entrenching Roe in our constitutional jurisprudence.

In view of the foregoing, it may be asked: Why did Dr. Carhart not challenge the Pain-Capable Unborn Child Protection Act? In the author’s opinion, the reason has nothing to do with the Act’s constitutionality with respect to its application to pre-viability abortions and everything to do with its application to post-viability abortions. With the exception of its decision in Carhart I, the Supreme Court has showed an increasing unwillingness to declare abortion statutes unconstitutional “on their face,” i.e., in all of their applications, and has preferred a more limited approach in which facial challenges are disfavored, “as applied” challenges are favored, and the relief granted in any case where a statute has unconstitutional applications will be limited to remedying those violations. See, e.g., Dalton v. Little Rock Family Planning Services, 516 U.S. 474 (1996) (per curiam) (vacating decision of court of appeals affirming injunction against enforcement of state constitutional amendment regarding abortion and remanding the cause for entry of an order enjoining enforcement of the amendment “only to the extent that the amendment imposes obligations inconsistent with federal law”); Leavitt v. Jane L., 518 U.S. 137 (1996) (per curiam) (summarily reversing judgment of the court of appeals that provisions of an abortion prohibition were not severable and remanding for a consideration of severability); Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006) (vacating judgment of the court of appeals striking down state parental-notice statute and remanding the cause to determine whether the unconstitutional applications of the law were severable from the constitutional applications); Carhart II, 550 U.S. at 167-68 (holding that the facial challenges to the federal Partial-Birth Abortion Ban Act should not have been entertained by the district courts). Given this trend in the case law, Dr. Carhart may have feared that, in challenging the Act, he could have “won the battle and lost the war”—i.e., the Court probably would have struck down the Act as it applied to pre-viability abortions, but upheld it as applied to post-viability abortions. This would be ironic, given NRLC's official policy opposing post-viability bans.

Abortion advocates are shrewd. They may have made a hard calculation that the benefits of having the Act struck down insofar as it prohibits pre-viability abortions was not worth the risk of having it upheld as it applies to post-viability abortions. The Act, recast as a post-viability ban only, would then have become the national “template” for post-viability prohibitions across the country, thereby replacing the generally weak and ineffective post-viability statutes that are now on the books in most states. If, in fact, that was Dr. Carhart’s reasoning for not challenging the Nebraska Act, that suggests that enacting similar statutes in other states may not trigger the “test case” that supporters of the “pain” bill are seeking. At some point, however, if enough states enact statutes based on the Nebraska Act, some abortion provider will bring suit. But as this article has demonstrated, such a suit poses risks not just for the pro-choice side, but also for the pro-life side. The pre-viability applications of the law would not be upheld and the “central” holding of Roe, that the states may not prohibit abortion before viability, could once again be affirmed by the Supreme Court. That significant downside could be entirely avoided by abandoning the approach taken by the Pain-Capable Unborn Child Protection Act and the Women’s Health Defense Act, and taking a different and more cautious approach: simply enacting a carefully drafted post-viability ban that could pass constitutional muster.

In addition to the constitutional concerns raised by NLRC’s and AUL’s models, it may be asked whether it is good public policy to ban abortions on the basis of the unborn child’s ability to experience pain. The unstated (and certainly unintended) message that such a policy communicates is that is acceptable to kill unborn children when they are not thought to be capable of experiencing pain (or perhaps, when their pain can be prevented). That is not a message the pro-life movement wants to send. The constitutional and public-policy concerns posed by these particular “pain” bills should give thoughtful pro-life legislators, lawyers, lobbyists, and activists pause before they decide to support such legislation in other states.

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Paul Benjamin Linton is an attorney in private practice who specializes in state and federal constitutional law. The author of many law-review articles, he also published the first comprehensive analysis of abortion rights under state constitutions, Abortion under State Constitutions: A State-by-State Analysis (Carolina Academic Press, 2008).