The Pain-Capable Unborn Child Protection Act is a congressional bill that makes it illegal for women to abort if the determined fetus age is twenty weeks or more. By this time, the unborn child has pain receptors present all over its body, implying that the child can respond to stimuli that would be otherwise acknowledged as excruciating when directed at a fully grown person. It is because of this reason that an operation on unborn children routinely dispenses fetal anesthesia. An exemption is given if, from a rational medical ruling, abortion is required to protect the life of an endangered pregnant woman . The pregnant woman will be considered endangered if she has physical health issues, including a life-threatening condition due to her pregnant state. However, psychological or emotional ailments are not considered part of life-threatening problems. The exemption is also granted if the pregnancy stemmed from rape against an adult female and if the pregnancy ensued from rape or incest against a minor. The bill requires the pregnant woman to consent. As such, the woman, her physician, and a witness will sign a consent form. The penalty for violating such an abortion law is a fine or imprisonment not exceeding five years or both. The Act also hinders any legal action against a woman obtaining an abortion later than twenty weeks. It permits such a woman who got an abortion against the law’s requirement to pursue civil action that sues the person who executed the abortion.
Roe and Casey point to the Supreme Court case, Planned Parenthood v Casey , where the court decided to sustain a woman’s constitutional right to have an abortion provided in Roe v. Wade . Therefore, a state is not allowed to outlaw most abortion cases. According to the ruling, however, states may place an abortion restriction that protects the mother’s health and the fetus’ life, and they may ban abortions of viable fetuses. Therefore, the court created an undue burden test that allows states to prohibit post-viability abortions, except in situations where a mother’s life and health are at risk. The Pain-Capable Unborn, Child Protection Act pursues outlawing pre-viability abortions in its implementation of an undue burden test. At 20 weeks, there is still a week or two left before the fetus’s viability can be declared. This provision, therefore, violates a woman’s constitutional right to abortion under Roe . There are very few instances of fetuses surviving if born at 20 weeks, which is problematic under the viability standard. Therefore, the Act restricts a woman’s right to an abortion even when the fetus would not live outside the womb. Viability then becomes an issue of contention as the fetus’s chances are tremendously faint at this pregnancy stage.
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Current laws legalize abortion as long the viability of the fetus has not been established. However, the law does not specify how to determine the viability of a fetus outside the womb. Roe v Wade defines viability as theoretically capable of surviving separate from the woman’s womb, even if it is with unnatural aid.” Roe v Wade identifies seven months as when viability occurs and states that it could be as early as 24 weeks. The twenty weeks provided in the Pain-Capable Unborn Child Protection Act are less than the minimum 24 weeks provided in Roe v Wade . The Act will thus be infringing on women’s rights to abort while viability has not been determined. If the bill passed, states would reduce the time frame within which a woman may abort against women’s constitutional right to abort. At the same time, a fetus’s viability is undetermined. The Act does not include psychological and emotional issues as part of the exemption reason why a woman will decide to abort. It means that mental health patients who pose a danger to themselves are not allowed to abort regardless of their threat to both the unborn baby and themselves.
