For now, I want to leave aside the regulations the bill imposes both on abortion clinics (restrictions so severe that “only five of Texas' 42 abortion clinics currently meet the new requirements,” the Associated Press reports) and on the provision of “abortion-inducing drugs.” Regarding those regulations, I’ll say only that they clearly expose the lie in conservatives’ claims that they want government out of private medical decisions.
Instead, I want to focus on Subchapter C of the bill, the so-called “Preborn Pain Act.” This aspect outlaws abortions after twenty weeks because, the bill claims, “substantial medical evidence recognizes that an unborn child is capable of experiencing pain by not later than 20 weeks after fertilization.”
First consider some of the related details of the bill. The bill offers no exception for rape or incest. The bill does offer exceptions “to avert the woman’s death or a serious risk of substantial and irreversible physical impairment of a major bodily function,” and in cases of “severe fetal abnormality.” If state agents believe a doctor has performed an abortion in violation of these rules, they may subject the doctor to fines.
By implication, a doctor may not perform an abortion if a woman faces “unserious” risks to her health(!), reversible physical impairment, or destruction of a “minor” bodily function. As determined by whom? As determined by state agents. Nor may a woman seek an abortion if her fetus suffers a “fetal abnormality,” but not one deemed sufficiently “severe” by state agents.
House Bill 2 is not about individual rights, nor does it claim to be. Instead, it invokes an alleged “compelling state interest” in imposing its regulations on doctors and women.
The notion that the state should ban abortion based on fetal pain is an obvious pretext by religious conservatives, intended to survive judicial scrutiny. Perry himself explicitly cites his religious beliefs as reason for signing the bill.
Conservatives obviously do not actually believe that the capacity to feel pain confers rights; otherwise, they would claim that an adult in a coma has no rights, and that a conscious mouse does have rights. But who needs honesty or consistency when you have faith?
Although the capacity of a fetus to feel pain is potentially relevant to a woman’s decision of whether and when to get an abortion, it properly has no bearing on the law. The proper purpose of the law is to protect individual rights—that is, the rights of individuated people. Fetuses are not individuated and thus do not have rights, whether or not they can feel pain; pregnant women and their doctors are and do.
As Diana Hsieh and I discuss in our essay, “The Assault on Abortion Rights Undermines All Our Liberties,” a right is (in Ayn Rand’s words) “a moral principle defining and sanctioning a man’s freedom of action in a social context.” The reason human beings need the concept of rights is that individual human beings need to act on (or develop) their rational judgment in order to live and, therefore, when acting in a social context, they need to be free from physical compulsion by others.
Whereas a fetus does not have rights, a newborn does because the “newborn infant is no longer a dependent being encased in and supported by the body of another; he is a person in his own right, living in a social context.” (See the article for our complete argument.)
The fact that a fetus can feel pain does not license the state to violate the rights of women or doctors. House Bill 2 should not have been called the “Preborn Pain Act”; it should have been called the “Abnegation of Rights Act.”
And conservatives who support it should not be called “pro-life”; they should be called anti-rights—which means, anti-life.
- The Assault on Abortion Rights Undermines All Our Liberties
- Ayn Rand's Theory of Rights: The Moral Foundation of a Free Society