Creating a new, ‘compelling' state interest - WOWK 13 Charleston, Huntington WV News, Weather, Sports

Creating a new, ‘compelling' state interest

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When arguing a state case before the courts, establishing the existence of a "compelling" state interest is the key in whether law is either upheld or struck down. 

While some argue that the Pain Capable Unborn Child Protection Act passed during the West Virginia Legislature's 2014 session is unconstitutional, Mary Spaulding Balch, JD, director of State legislation for the National Right to Life Committee, said establishing a new, "compelling" state interest will be key for its supporters to defend its constitutionality.

The new state interest

The Pain Capable Unborn Child Protection Act that would prohibit abortions after 20 weeks presents the opportunity to assert a new, compelling state interest, Balch said.

What is the basis for the potentially new, compelling state interest?

Balch says based on scientific evidence that by 20 weeks gestation, a fetus would experience excruciating pain during an abortion, West Virginia may "assert a compelling state interest in protecting the lives of unborn children from the stage at which there is substantial medical evidence that they are capable of feeling pain."

"The states enacting this legislation are not asking the (U.S.) Supreme Court to overturn or replace its holding, first articulated in Roe v. Wade and reaffirmed in Planned Parenthood of Southeastern Missouri v. Casey, that the state interest in unborn human life, which is ‘legitimate' throughout pregnancy, becomes compelling at viability," Balch said. "Rather, they are asking the courts to recognize a separate and independent compelling state interest in unborn human life that exists once the unborn child is capable of feeling pain."

"Viability," Balch said, would occur once the child was able to sustain itself outside of the womb without intervention. 

The Pain Capable Protection Act is currently being enforced in eight states and was passed by the U.S. House of Representatives June 18, 2013, by a vote of 228-196.

Opponents of the legislation include Planned Parenthood. The group calls the measure "dangerous."

Under pain-capable legislation, abortions are not prohibited. They can be performed to save the mother's life or prevent irreversible damage to the mother. 


Melissa Reed, vice president of public affairs for Planned Parenthood, points out the U.S. Supreme Court declined to review a lower court ruling of a 2012 Arizona pain-capable law ruled unconstitutional, and she said similar laws in Georgia and Idaho have been blocked by the courts. Reed also points to voters in Albuquerque, N.M., shooting down a referendum that would have imposed a ban on post-20 week abortions in November.

While certain medical questions are disputed among physicians and scientists, the Supreme Court made clear in Gonzales v. Carhart that "the existence of such disputes does not prevent a state from acting based on its evaluation of which position is more accurate, as long as substantial evidence supports the state's position." 

Justice Anthony Kennedy's opinion for the court in Gonzales states that, "the court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty."

Other methods

An abortion method banned by the Partial Birth Abortion Ban Act is dilation and extraction, or D&X. Doctors cannot perform the procedure on a fetus unless the mother would die without it. 

States, doctors and patients sued to overturn the ruling, saying the law was too vague, it was unconstitutional and it breached the terms set out in Roe v. Wade, but the ban was upheld.

The opinion of the court stated, "Respondents have not demonstrated that the Act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman's right to abortion based on its overbreadth or lack of a health exception."

It is legal to inject a fetus with chemicals that speed up the heart rate, causing death from a heart attack inside the womb. It is also legal to use medical instruments to cut and pull the fetus into pieces and remove the pieces from the woman's body.

In describing how abortions are performed, Kennedy focused on the potential pain such procedures would cause the unborn child. He also focused on the emotional consequences the details of the procedure could have on the mother.

Advancing technology

According to Balch, the emergence of 4D ultrasound machines dismisses the notion that what mothers may abort is merely a mass of cells.

Balch said an even newer field of medicine is emerging — fetal surgery. The first human fetal surgery was performed at University of California, San Francisco, (UCSF), in 1981.

With fetal anesthesia, Balch said, doctors can do surgery on a fetus to correct certain conditions. Some doctors assert that correcting spina bifida while the fetus is still in the womb, if it can be done, leads to better child development and fewer neurological complications.

Due to the numerous technological and medical advancements that were not available in 1973 when Roe v. Wade was decided, Balch said taking a new look at the developmental process of the unborn child deserves closer inspection.

"The theory is this information was not available in 1973," she said. "We're asking the Court to move into the 21st century." 

The constitutionality question

In Roe v. Wade and its companion case, Doe v. Dalton, the Supreme Court held that even after viability, some abortions must be permitted for the mother's health.

Such a broad exception is not contained in the Pain Capable Act, Balch said. 

Instead, the law includes the language upheld in Casey.

"The Casey decision affirmed an appellate holding deeming acceptable the phrase ‘to avert the woman's death or to avert a serious risk of substantial and irreversible impairment of a major bodily function,''' she said. "To uphold the narrowed health exception, states can rely on evidence from medical experts that modern medicine can successfully treat complications of pregnancy that fall short of the physical conditions specified in the proposed bill without resort to abortion, so that the states can constitutionally judge that no broader exception is needed to prevent significant risks to the mother's health."

Under the Pain Capable Act, when the narrowed health exception applies so that an abortion is permitted after the stage in which the unborn child is capable of feeling pain, the doctor must employ the method of abortion most likely to facilitate a live birth, so long as it does not pose a threat to the mother's life or cause irreversible physical impairment of a major bodily function.

The opinion of the court under Gonzales states, "Where it has a rational basis to act, and it does not impose an undue burden, the state may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn."

Case of first impression

Balch said rather than asking the court to overturn precedent, "the Pain Capable Act would present a question of first impression in whether there is a compelling interest in protecting unborn children who are capable of experiencing pain from abortion, separate and apart from the previously recognized compelling state interest in viable unborn children."

While Roe v. Wade acknowledged a state interest in the context of viability, Kennedy has written, "(in Casey), we held it was inappropriate for the Judicial Branch to provide an exhaustive list of state interests implicated by abortion.

"States also 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."

Because the Supreme Court has never previously had occasion to consider whether the fact that after a certain stage of development a fetus can experience pain makes the state's interest in unborn life compelling, Balch said the state's assertion of such an interest makes this a case of first impression.

Not the same laws

While proponents of the Pain Capable Bill argue it is the same as the Arizona's Women's Health and Safety Act, which the 9th Circuit Court of Appeals found to be unconstitutional, Balch said this is not the case.

"Arizona's ‘Mother's Health and Safety Act,' a law which banned abortion after 20 weeks last menstrual period is not the same as West Virginia's Pain Capable Fetus Protection Act," she said. "West Virginia's Pain Capable Fetus Protection Act protects children from abortion beginning at 20 weeks fetal age, based on scientific evident that by this stage of development the child would experience excruciating pain. Arizona's law, as its name implies, focused on protecting the health and safety of the mother."

The Unborn Victims of Violence Act of 2004 recognizes a child in utero as a legal victim, if he or she is injured or killed during the commission of any of more than 60 listed federal crimes of violence. 

That law defines "child in utero" as "a member of the species Homo Sapiens, at any stage of development, who is carried in the womb."

Governor Earl Ray Tomblin has yet to sign the Pain Capable Child Protection Act.