Pain-Capable Abortion Bans

More than three decades ago, I went to visit a friend who was hospitalized at NIH in Bethesda, Maryland. On the way from the parking lot to her room, I encountered a group of animal rights activists protesting the use of animals in medical research. To this day I vividly remember the chant they repeated again and again: “A cat is a rat is a dog is a boy.” Operating on a hunch, I couldn’t resist asking about their viewpoint on abortion. As I suspected, the group was decidedly pro-choice, connecting their acceptance of abortion with the problem of over-population. Even at the time, I thought it strange that someone could be against animal research for medical benefit but for abortion. Thirty years later, I still think it strange.

A few weeks ago South Carolina Governor Nikki Haley signed a law that bans abortion at or after 20 weeks. Undoubtedly, the pro-choice camp will be up in arms against the law. Arkansas and other states have passed similar “pain-capable” abortion laws that remain stymied in judicial review.

Two reasons often set forth for prohibiting abortions at and after 20-weeks are the fetus’ resemblance to an infant and the fetus’ capacity to feel pain. I wish to make one point regarding the latter criterion. Specifically, I contend that one cannot be for animal rights and, at the same time, be against laws that prohibit abortions at the at the development stage of sentience.

For animal rights proponents, the launching point of their argument for animal equality and their opposition to “speciesism” is that non-human animals are capable of feeling pain like human animals, and thus, should not be discriminated against but rather accorded equal consideration. By their logic, animal rights—including the right not to be killed—flow out of the animals’ capacity to feel pain. This was the point of the animal rights protesters at NIH decades ago.

If one accepts the logic of animal rights, then shouldn’t he or she be against abortion at the point at which fetuses are capable of feeling pain? Even if one has a low view of the value of the embryonic/fetal human being in the womb, doesn’t he or she have to admit that at a certain stage in fetal development they are at minimum “pain-capable animals”? If so, don’t they have the right not to be killed?

Critiquing this key argument of the animal rights movement is not my present aim. Rather, I’m simply pointing out that it is logically inconsistent to be for animal rights and against laws that limit abortions at the point fetuses can feel pain. Thus, animal rights proponents should not be against “pain-capable” abortion laws. They cannot accord rights to pain-capable non-human animals and deny them to pain-capable human fetuses.

Of course, from the pro-life perspective, pain capability is an arbitrary threshold, since this perspective bases its opposition to abortion on the inherent value of the embryonic/fetal human being from the earliest moments of existence. Obviously, pro-choice proponents do not accept this high view of the value of embryonic/fetal human beings. However, I’ve run across a great number of people like the protestors at NIH who see themselves as promoters of both “abortion rights” and “animal rights.” It would be progress if they could come to see that prohibiting abortions at the point of pain capability is reasonable and is consistent with the logic they use to justify animal rights. For the pro-life camp, this would represent only a minimal victory. However, at the present time when some seek to defend “post-birth abortion” (i.e. infanticide), it would at least be a step in the right direction.

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