Highlight on West Virginia: Bill Would Ban Abortion at 20 Weeks to Prevent Fetal Pain

The Pain-Capable Unborn Child Protection Act (H.B. 2153), a bill introduced in West Virginia by Representative David Perry (D), would make all abortions illegal after 20 weeks after fertilization unless the pregnant person’s health is at serious risk. Previously, Perry introduced a similar bill, which was passed by the state’s house and senate but was vetoed by Governor Earl Ray Tomblin. The bill is premised on the contention that fetuses can feel pain at 20 weeks of gestation.

Specifically, the West Virginia legislation notes the following:

  • Pain receptors are present no later than 16 weeks after fertilization, with nerves linking the receptors to the brain at no later than 20 weeks;
  • By eight weeks after fertilization, fetuses react to stimuli that would be recognized as painful if applied to an adult human, by recoiling, for example;
  • Painful stimuli are associated with a significant increase in stress hormones; and
  • Subjection to painful stimuli is associated with long-term harmful neuro-developmental effects.

“There is a point where the humanity of the unborn child is very, very clear,” said Marjorie Dannenfelser, the president of the Susan B. Anthony List, an organization that supports the ending of all abortion. “Brothers and sisters of a baby that’s 20 weeks looks at the sonogram, they see the child moving around. . . . Mothers read WebMD, and it says you should be singing to your baby at this point, that she can hear melodies, she can feel rhythms.”

Contrary research, such as a Journal of the American Medical Association review of evidence, shows that fetal perception of pain is unlikely before the third trimester.

Opponents of the West Virginia bill also note that there are no exceptions for fetal abnormalities or for pregnancies resulting from rape or incest, where the Supreme Court has upheld exceptions allowing abortion to protect all aspects of a woman’s health, including those “physical, emotional, psychological, familial.” (Doe v. Bolton, 1973).

Perry said, “I feel very confident that the bill will pass this session. Whether the governor signs it into law or not, one thing I think we have this year is we have the ability to override his veto.” Republicans currently control the West Virginia legislature, and only a simple majority is needed to overturn a veto by the governor.