The Supreme Court has in recent years taken great pains to require that execution of criminals who have committed the most heinous of crimes be done as painlessly as possible. In almost every State that continues to utilize the death penalty as the ultimate punishment, a dose of sodium pentathol is administered first, rendering the convict unconscious so that the actual death-inducing drugs in the common three-drug cocktail do not cause any pain.

No such drugs are administered to an unborn child before a late-term abortion, yet new scientific evidence is pointing to the very real possibility that a fetus feels pain perhaps as early as 16 or 18 weeks gestational age. One need only read the Supreme Court’s own descriptions of the common “skull-crushing” and “limb-ripping” procedures used beyond the first trimester to realize how horrific the pain must be, if this new scientific evidence proves true.

Other scientific evidence is demonstrating that the risk to maternal health increases exponentially with each passing week later in the pregnancy.

Confronted with this evidence, thirteen states have since 2010 passed laws restricting abortions after 20 weeks to those necessary to prevent death or serious health risks to the mother. Although abortion advocates have claimed that these laws are “blatantly unconstitutional” because they apply to pre-viability abortions, they have deliberately not challenged the laws in federal circuit court jurisdictions thought likely to uphold the laws. Nebraska’s first-of-the-kind statute adopted in 2010 remains in effect, for example. Texas’s statute, adopted over the much ballyhooed filibuster by State Senator Wendy Davis in 2013, likewise remains in effect (the lawsuit brought against that law did not challenge the 20-week restriction). As one news account noted with respect to the Texas litigation, there was “a strategic reason to avoid challenging that [20-week] ban…. [A] Texas challenge would go to the conservative Fifth Circuit. Not only would that court potentially uphold the law … , the combination of decisions would create a split in the circuits that would make the Supreme Court likelier to hear it.”

But abortion advocates did challenge the 20-week restriction adopted by Arizona. Arizona is in the Ninth Circuit, which leans decidedly the other direction from the Fifth and Eighth Circuits. Although the federal trial court upheld the Arizona statute based on the undisputed evidence of fetal pain and increased maternal health risk, the Ninth Circuit reversed, holding that the statute was per se unconstitutional because it restricted abortion prior to fetal viability. The Supreme Court itself had in 2007 upheld a partial birth abortion ban that admittedly restricted some pre-viability abortions, but the Ninth Circuit held that the viability line nevertheless remained sacrosanct. Arizona petitioned the Supreme Court for review, but its petition was denied on Monday of this week.