Is bill unconstitutional?

Dear Editor:

The WV House of Delegates passed H.B. 2568, the Pain-Capable Unborn Child Protection Act, in a bipartisan vote of 87 to 12; and it is now being considered in the WV Senate. We are once again hearing the entirely false claim that the bill is unconstitutional.

First, the Supreme Court has never ruled on this matter so no one knows what its constitutional status is. This is a case of “first impression” meaning it is a new legal construct. The bill introduces the idea that the state has a compelling interest in protecting the life of the pain-capable unborn child. The presence of a state interest in protecting the unborn child was proposed by Supreme Court Justice Anthony Kennedy in his decision upholding the Partial Birth Abortion Ban Act. The Pain-Capable Unborn Child Protection Act is designed to acknowledge the new research that is now available concerning pain and the developing unborn child and, thus, to trigger the recognition of the state’s compelling interest in protecting the life of the unborn child, who has reached the point in development where he is capable of feeling pain. We won’t know the Supreme Court’s position on this new legislation until a case is brought.

Second, a large number of legislators, lawyers and attorneys general believe this case has merit. This includes a majority of the U.S. Congress and the ten state legislatures where it has passed. In two states, Georgia and Idaho, it has been enjoined and no action has occurred on the challenges.

Third, it is false to claim that the “Arizona bill” that was struck down by the 9th Circuit Court is proof of the unconstitutionality of the WV bill. The Arizona bill is not the same as our bill; its primary stated interest was to protect the life and health of the women seeking late abortions, arguing that later abortions are riskier to the woman’s health and safety. This is clearly indicated by the bill’s name: the “Women’s Health and Safety Act.” The bill before the WV Senate states that the compelling interest is to protect the life of the pain-capable unborn child. Clearly these are two distinct interests.

Wanda Franz, Ph.D.

West Virginians for Life President



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