Fetal pain Late-term abortion

forthcoming article of interest

Two pro-choice advocates are publishing an article of interest in The Journal of Law, Medicine and Ethics: Glenn Cohen and Sadath Sayeed, Fetal Pain, Abortion, Viability and the Constitution (forthcoming April/May 2011).

One significant point is that the authors implicitly corroborate the irrelevance of viability to the personhood of an infant born alive in an abortion context. They pose a hypothetical in which a woman in an abortion clinic “goes into active, uncontrollable labor and . . . deliver[s] an extremely premature newborn.” Given the child’s “long odds,” i.e., its likely non-viability, the woman asks the clinic to provide “care . . . [to] maximiz[e] comfort and ensur[e] dignity during the dying process. This palliative choice is respected by her providers because in the U.S. pediatrics community, there is generally consensus that neonates born below 23 weeks by LMP should not be resuscitated given their poor chance of survival without significant disability.” It is telling that the authors do not envision an alternative for these early neonates—simply crush their heads with a hammer. It is gratifying that the authors implicitly recognize that a baby born alive is a baby born alive, wherever this occurs.

The article also discusses the new focus on fetal pain as a ground for limiting abortion prior to viability. The authors assert a weakness in stressing the capacity to feel pain, i.e., it “suggest[s] that animals who can feel pain should also qualify for constitutional personhood at least as to being killed, unless one could offer a constitutionally relevant ‘non-speciesist’ (to use Peter Singer’s term) further distinction between fetuses and animals.” The authors suggest that it would difficult to offer such a distinction. Do they actually think that the Constitution makes no distinction between humans and animals?

Samuel Calhoun

Samuel Wolfe Calhoun, J.D., is Professor of Law at Washington and Lee University School of Law. He received his J.D. from the University of Georgia and his B.A. from Harvard University. His teaching interests are contracts, commercial law, and legal writing. In addition, he teaches a seminar on the abortion controversy. His scholarly interests are law and religion, abortion, and jurisprudence. His most recent major piece of scholarship is “Grounding Normative Assertions: Arthur Leff’s Still Irrefutable, But Incomplete, ‘Sez Who?’ Critique,” Journal of Law and Religion 20 (2004-2005): 31ff. His website can be found at: