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See also Tobin, , supra note 7, at 147–151 (reviewing existing evidence for claim that fetuses feel pain at 20 weeks gestation and declaring them “questionable on the issue of truthfulness, and [] misleading.”). For these reasons we are skeptical of the medical claim that fetuses feel pain and think it poorly factually grounded. As a matter of doctrinal constitutional law, however, it is at least possible that the Roberts court may defer to Nebraska's legislative findings on this issue despite their poor factual foundations. In two of its recent abortion decisions, the Court has sent mixed signals on deference to legislative findings in the abortion context. In Stenberg v. Carhart, 530 U.S. 914 (2000), the majority did not mention deference while the dissent chastised the majority for failing to afford the legislature deference; see id., at 1017 (Thomas, , Dissenting, J.); id., at 967–970 (Kennedy, J., dissenting, ); see Tobin, , supra note 6, at 132–134. More recently, in Gonzales v. Carhart, speaking to the question of a possible health exception the majority suggested no deference, writing: “Although we review congressional factfinding under a deferential standard, we do not in the circumstances here place dispositive weight on Congress' findings[; t]he Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake,” suggesting that “some recitations in the Act are factually incorrect” and that “uncritical deference to Congress’ factual findings in these cases is inappropriate.” 550 U.S. 124, 165–66 (2007). The Court is far from pellucid as to what it means by “in the circumstances here” and “in these cases,” and the same opinion also offers some cues in the other direction. See Tobin, , supra note 7, at 133–134. Thus, while deference seems less likely given these precedents the matter is far from resolved.Google Scholar

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Cohen, I. G., “The Constitution and the Rights Not to Procreate,” Stanford Law Review 60, no. 4 (2008): 1135–1196. Under the version of the “combination” argument we have been discussing, it is pain to a human fetus coupled with the state's growing but not-yet compelling state interest before viability that in combination constitutes a compelling state interest that overcomes the woman's abortion right claim. We have settled on that variant because it is the most favorable to the Nebraska law, but, inspired by the pain standing alone argument, one could also imagine a less plausible variant that treats pain to all sentient beings alike in terms of the “combination.” Where might the two versions diverge? Imagine that the only way to perform an abortion at 20 weeks postfertilization age was to inject into a woman serum from a chicken brain that could only be gathered by subjecting the chicken to excruciating pain, but which would be painless for the womans fetus. Under this less plausible version of the combination argument, the state should be able to prohibit the abortion because of its interest in preventing pain to a non-person capable of feeling it (the chicken) in combination with its desire to preserve fetal life (of the fetus). On the one hand, that result seems strange, and it seems hard to imagine the Supreme Court upholding such a prohibition. On the other hand, one might ask: Why should the constitutional status of the abortion act change just because it is the same entity to whom we want to prevent pain and preserve life? One answer might be that fetal pain “counts” more because its victim is human, but again one might worry that the reason why is “speciesism” of the kind decried by Singer, supra note 32.Google Scholar

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