Easing Abortion's Pain: Can Fetal Pain Legislation Survive the New Judicial Scrutiny of Legislative Fact-Finding?

Abstract

Fetal Pain laws have been passed in various states and proposed in Congress. These informed consent-type statutes require abortion physicians to provide a pregnant woman seeking an abortion with information explaining the existence of fetal pain and allowing the woman to obtain direct anesthesia for her unborn child. This article argues that such legislation should survive the heightened judicial scrutiny that has been applied to legislative fact-finding. The article focuses on the proposed federal "Unborn Child Pain Awareness Act of 2005," which is similar to most state legislation. It describes the “new” judicial scrutiny of legislative fact-finding and isolates four “deference factors” that courts often use when evaluating these “facts.” The article examines the medical evidence regarding fetal pain and concludes that such legislation should survive judicial scrutiny.