Is Wendy Davis smarter than a fifth grader? Probably, because she's smarter than I am, and I made it past 5th grade. The Texas state senator, able to conduct a filibuster Harry Reid could barely imagine, was asked by David Gregory on Meet the Press (transcript, here) about efforts by several states to ban abortion after the 20th week of pregnancy. She responded
Right now, that ban of course is being talked about because of the idea of fetal pain. And at the constitutional level, what we of course have assured is that women have the ability to make these reproductive decisions up to the point of viability. That has to remain the key question here.
I doubted the wisdom of Davis' thrust to skirt the issue of fetal pain in favor of the question of viability. The Supreme Court, significantly, had ruled in 1973 that states could not ban abortions during the first trimester and could do so during the second trimester only to protect the health of the woman. It was at that point, the Court concluded, that the fetus became viable.
Nevertheless, many Americans have come to the belief that banning abortion after the 20th week would be sound public policy. Later in the same broadcast, serial liar Ralph Reed would contend "70% of the American people favor bans on abortion after the 20th week." That claim, coming from the man known for unethical funding for his (successful) run for GOP party chairman in Georgia, better known for repeatedly violating campaign finance laws as head of the Christian Coalition, and best known for thoroughly corrupt activities while heavily involved as a lobbyist for Jack Abramoff, unsurprisingly is false. That 70%, as noted by Sarah Kliff in Wonkblog, turns out to be 48%, a slight plurality- and that's without informing respondents that such a ban would violate Roe v. Wade.
Repubs in state legislatures have promoted such a ban on the premise the fetus feels pain after 20 weeks of gestation and ten states have passed legislation of that kind. That premise, however, appears bogus. The American College of Obstetricians and Gynecologists has observed there is "no legitimate scientific information that supports the statement that a fetus experiences pain." Science Daily, which reported in September, 2011 of a study from which Dr Rebeccah Slater, UCL Neuroscience, Physiology and Pharmacology, summarized: "Premature babies who are younger than 35 weeks have similar brain responses when they experience touch or pain. After this time there is a gradual change, rather than a sudden shift, when the brain starts to process the two types of stimuli in a distinct manner." Fetuses do, then, experience pain- shortly before birth.
But just as the right is able to find the odd climate scientist who believes(or claims to believe) the earth is not warming, so, too, will there be scientists, such as Professor KJS Anand of the University of Tennessee Health Science Center, to maintain that fetuses may feel pain earlier in the process. But a panel of the Ninth Circuit Court of Appeals, in overturning the ruling of a US District Judge upholding Arizona's post-20th week ban on abortions, wrote "no changes of fact have rendered viability more or less appropriate at the point at which the balance of interest tips." Jessica Mason Pieklo, Senior Legal Analyst for RH Reality Check, concludes
It’s that full-forced defense of viability as the cut-off point for when the state can ban abortion that is the most important, because, as the Arizona case illustrates, a key component of the legal argument challenging Roe is to find a way to either abandon viability altogether or replace it with something else, like “fetal pain.” And as the Arizona case also illustrates, at least one sitting federal judge was willing to bite and do so.
Fetal viability as the earliest point when states can legally ban most abortions is an imperfect standard at best, but it is one that has provided the most legal shelter from efforts to overturn Roe. The Ninth Circuit, in forcefully re-affirming that standard, also forcefully re-affirmed the idea that a woman’s body is not de facto property of the state once she becomes pregnant. It’s critically important to have that idea re-affirmed.