TITLE 18

CRIMES AND PUNISHMENTS

CHAPTER 5

PAIN-CAPABLE UNBORN CHILD PROTECTION ACT

18-503.  legislative findings. The legislature makes the following findings:

(1)  Pain receptors (nociceptors) are present throughout the unborn child’s entire body by no later than sixteen (16) weeks after fertilization and nerves link these receptors to the brain’s thalamus and subcortical plate by no later than twenty (20) weeks.

(2)  By eight (8) weeks after fertilization, the unborn child reacts to touch. After twenty (20) weeks, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult human, for example by recoiling.

(3)  In the unborn child, application of such painful stimuli is associated with significant increases in stress hormones known as the stress response.

(4)  Subjection to such painful stimuli is associated with long-term harmful neurodevelopmental effects, such as altered pain sensitivity and, possibly, emotional, behavioral and learning disabilities later in life.

(5)  For the purposes of surgery on unborn children, fetal anesthesia is routinely administered and is associated with a decrease in stress hormones compared to their level when painful stimuli are applied without such anesthesia.

(6)  The position, asserted by some medical experts, that the unborn child is incapable of experiencing pain until a point later in pregnancy than twenty (20) weeks after fertilization predominately rests on the assumption that the ability to experience pain depends on the cerebral cortex and requires nerve connections between the thalamus and the cortex. However, recent medical research and analysis, especially since 2007, provides strong evidence for the conclusion that a functioning cortex is not necessary to experience pain.

(7)  Substantial evidence indicates that children born missing the bulk of the cerebral cortex, those with hydranencephaly, nevertheless experience pain.

(8)  In adults, stimulation or ablation of the cerebral cortex does not alter pain perception, while stimulation or ablation of the thalamus does.

(9)  Substantial evidence indicates that structures used for pain processing in early development differ from those of adults, using different neural elements available at specific times during development, such as the subcortical plate, to fulfill the role of pain processing.

(10)  Consequently, there is substantial medical evidence that an unborn child is capable of experiencing pain by twenty (20) weeks after fertilization.

(11)  It is the purpose of the state of Idaho to assert a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.

(12)  Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which, in the context of determining the severability of a state statute regulating abortion, the United States supreme court noted that an explicit statement of legislative intent is of greater weight than inclusion of a severability clause standing alone, the legislature declares that it would have passed this act, and each provision, section, subsection, sentence, clause, phrases, phrase or word thereof, irrespective of the fact that any one (1) or more provisions, sections, subsections, sentences, clauses or words of this act or the application thereof to any person or circumstance, were to be declared unconstitutional.

History:

[18-503, added 2011, ch. 324, sec. 1, p. 946.]