The Unborn Child Protection Act of 2018: Some Challenges and Some Suggestions

Photo from the Charlotte Lozier Institute, May 2016

Seventeen states have passed and signed into law legislation with fetal pain clauses similar the 34th Guam Legislature's Bill 232-34, "The Unborn Child Protection Act of 2018".  That bill is sponsored by Senators Dennis Rodriguez,  Joe S. San Agustin, Telena C. Nelson, Frank B. Aguon, Jr., and Thomas A. Morrison.  States with similar legislation include Arizona, Alabama, Arkansas, Georgia, Idaho, Indiana, Kansas, Louisiana, Mississippi, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, West Virginia, and Wisconsin.

Additionally, thirteen states have legislated informed consent laws that mandate that a women be informed that her baby can probably feel pain if it is at least 5 months (20 weeks) gestation.  These include Arkansas, Arizona, Georgia, Indiana, Kansas, Louisiana, Minnesota, Missouri, Oklahoma, South Dakota, Texas, Utah, and Wisconsin.

In Utah, anesthesia is required for abortion past 20 weeks gestation.

About the Bill

A complete copy of Bill 232-34 as it was introduced may be found by clicking here.   The salient provisions of the bill are:

• Abortions are prohibited after 20 weeks unless the abortion is necessary to avert the mother's death, or to avert serious risk of substantial and irreversible physical impairment or to prevent the death of an(other) unborn child.
• Failure of a physician to follow the law constitutes unprofessional conduct.
• A physician who performs an abortion in violation of this law is guilty of a third degree felony, but no criminal penalty will be assessed against the woman upon whom the abortion was performed.
• The mother or father of the baby aborted in violation of this law could bring a civil action for damages against the offending physician.
• The bill requires more detailed reporting to the Government of Guam of the gestational age of legally aborted babies.

Some Challenges and Some Suggestions

Guam's proposed law could face some serious legal challenges.

Arizona’s Women’s Health Defense Act, which has language similar to Bill 232-34 and limiting abortion at or after 5 months (i.e., 20 weeks) gestation and based on the risks of later-term abortions to maternal health and concerns for fetal pain, has been permanently enjoined by the Ninth Circuit.  Click here to read the Ninth Circuit Opinion.  In this case, the Ninth Circuit held that under Supreme Court precedent, Arizona may not deprive a woman of the choice to terminate her pregnancy at any point prior to viability.

A law prohibiting abortions in Idaho or after 5 months (i.e., 20 weeks) on the basis of pain experienced by unborn children has also been invalidated by the Ninth Circuit.  Click here to read that Ninth Circuit Opinion.  That opinion also held that the pertinent section of the Idaho law, which prohibits abortions of fetuses of twenty or more weeks post-fertilization, was unconstitutional because it categorically bans some abortions before viability.

Guam is under the jurisdiction of the Ninth Circuit, so these opinions certainly could pose a challenge to the ultimate fate of Bill 232-34 if it is passed without changes. 

Another Purpose

While a major purpose of this bill is certainly to become law and to save the lives of some unborn babies, it also serves to keep the community talking about abortion and to force elected officials and candidates for elected office to make public their views on the rights of the unborn.  In that sense, the bill does not actually need to be voted into law in order to do good.  Because where abortion is hidden and isn't discussed, abortion is tolerated.

References

1. Defending Life 2017: A State-by-State Legal Guide to Abortion, Bioethics, and the End of Life, Americans United for Life, Arlington, Virginia
2. An Overview of Abortion Laws, Guttmacher Institute, https://www.guttmacher.org/state-policy/explore/overview-abortion-laws, retrieved January 27, 2018
3. State Policies on Later Abortions, Guttmacher Institute, https://www.guttmacher.org/state-policy/explore/state-policies-later-abortions, retrieved January 27, 2018