Since November, much of the pro-life movement's legislative attention has been on one bill: Sen. Lindsey Graham's “Pain Capable Unborn Child Protection Act.” The Act, which would protect unborn babies from abortion at or after 20 weeks' gestation in all cases except rape, incest, and life of the mother, has been seen as the first pro-life bill since the partial-birth abortion ban that could actually pass into law.
It hasn't even gotten much pushback from those who believe “incremental” legislation abandons those babies and women who would not be protected, and many believe just getting a vote in the Senate would be a victory.
However, after listening to Sen. Graham, R-SC, speak about this legislation three times – including on November 7, when he introduced it – I wonder if passage of the legislation would end up being a Pyrrhic victory.
The primary argument being used by Graham, the bill's lead sponsor, is one that could give pro-abortion activists a media coup delivered on a silver platter should the bill pass into law (which it won't this year). Consider what Graham said at the SBA's “Campaign for Life” Summit this week, which I attended:
We're eventually going to take the legal theory of pain-capable to the Supreme Court. We're going to make the best argument I know how to make: that if legislative bodies in the United States at the state and federal level have a legitimate, compelling state interest to protect a child from abortion because they can feel pain, they can't be operated on without anesthesia, then it's a completely different legal theory than medical viability. Not only is this a good issue, the right issue, this could be a breakthrough in terms of the pro-life movement.
Why, at this point in the birthing process, do you want to allow wholesale abortion on the baby? Why?
We can have our differences about when life begins … but why would you do that, as a civil, humane society? The more we think about the baby, the more people associate with the baby, the better off we're going to be.
We're going to make a logical argument – that if a doctor cannot operate on an unborn child at 20 weeks without providing anesthesia, should society as a whole allow wholesale abortions?
Graham's rhetorical strategy is potentially very effective: The baby can feel pain, isn't that awful, people should empathize with the baby, and therefore not support abortion at 20 weeks' gestation.
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But what about prior to 20 weeks? This was the third time I had seen Graham speak about this bill, and each time he's made the same basic argument: Feeling pain equals a legal theory that means an abortion shouldn't take place. But if the feeling of pain is going to be his legal theory for barring abortions, then any abortion that takes place before a child can feel pain is fine, right?
And notice how he uses pain to ask how “a civil, humane society” can kill a baby that feels pain. Again, is aborting a baby before 20 weeks' gestation any more civil or humane? I wonder if Graham's rhetoric could hand pro-abortion advocates another weapon in their battle to kill more innocents.
There are many good reasons to aim at passing a ban at 20 weeks' gestation. For one, it is an issue pro-life activists can win at an emotional level – babies can feel pain. Furthermore, it only affects one percent of abortions, which means pro-lifers can argue that there is no undue burden on most women who want to have an abortion. And, of course, there is the fact that some babies have been born, and lived, shortly after 20 weeks' gestation.
On the other hand, the bill allows exceptions for rape, incest, and life of the mother – exceptions that caused pro-life leader and Georgia Senate candidate Paul Broun to oppose it in the House. Others point to how a bill that focuses on pain instead of foundational pro-life principles could leave pro-abortion advocates with a powerful rhetorical weapon regarding abortions earlier in the gestational period.
Either way, the 20-week abortion ban has a long time to go before it's passed into law, if it ever gets to that point. But before then, Graham should consider finding new, bigger picture arguments for passage of his bill. Or the Act, which aims to prevent somewhere around 12,000 to 15,000 abortions annually, could lead to the enemies of life losing a battle but gaining ground in the larger war.