Fetal Pain, Abortion, Viability, and the Constitution


  • I. Glenn Cohen,

    1. Assistant Professor and Co-Director of the Petrie–Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.
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  • Sadath Sayeed

    1. Instructor in the Division of Medical Ethics of the Department of Global Health and Social Medicine at Harvard Medical School and a Staff Neonatologist at Children's Hospital Boston.
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In early 2010, the Nebraska state legislature passed a new abortion restricting law asserting a new, compelling state interest in preventing fetal pain. In this article, we review existing constitutional abortion doctrine and note difficulties presented by persistent legal attention to a socially derived viability construct. We then offer a substantive biological, ethical, and legal critique of the new fetal pain rationale.