Despite being passed by the House of Representatives, the Pain-Capable Unborn Child Protection Act, which bans abortion after 20 weeks, has no chance of becoming law as long as Democrats control the Senate and the White House. It’s significant, though, as evidence of a broad new legislative assault on Roe v. Wade, one that aims to use the uncertain science of fetal pain to ban abortion before viability.
Eleven states have passed similar bans in recent years, and Wisconsin, Texas, and South Carolina may pass them soon. From the start, the idea has been to take them to the Supreme Court in the hopes that it might be open to fundamentally reconsidering Roe. Indeed, when the first such law was passed in Nebraska in 2010, its sponsor, Mike Flood, was clear about his hopes of replacing the Roe framework with one based on pain. “Clearly my bill walks away from viability as a standard and instead substitutes a scientific standard that I think the state of Nebraska has a legitimate and substantial interest in preserving and promoting fetal life at that point,” he told The Washington Post. And in March, when, as expected, a federal court struck down Idaho’s fetal-pain law, the anti-abortion website LifeNews reported that the National Right to Life Committee actually welcomed the ruling, “because it provides an opportunity to get to the Supreme Court and to further water down Roe v. Wade.”
Most mainstream medical bodies reject the science behind these laws, but it’s contested enough to provide an opening for judges inclined to rule in favor of abortion restrictions. And whether or not their arguments prove legally convincing, the anti-abortion movement benefits politically whenever it can shift the debate over abortion from embryos to more developed fetuses. In that sense, these laws represent a renewed pragmatism in the anti-abortion movement after the failure of efforts to pass personhood laws giving rights to fertilized eggs.
After all, many people who have had amniocentesis, performed after 15 weeks of pregnancy, have seen their fetuses seem to flinch from the needle. And as anti-abortion politicians like Sam Brownback frequently point out, fetuses undergoing surgery routinely receive anesthesia. To people who are ambivalent about abortion, claims about fetal pain seem reasonable in a way that claims about human rights for microscopic embryos do not.
Nevertheless, the medical consensus is that while a fetus may exhibit reflexes before viability, its nervous system is not developed enough to process pain until sometime in the third trimester. In 2010, Britain’s Royal College of Obstetricians and Gynaecologists reviewed the available evidence and concluded that the “fetus cannot feel pain before 24 weeks because the connections in the fetal brain are not fully formed.” Further, it found, the fetus, “while in the chemical environment of the womb, is in a state of induced sleep and is unconscious.”
Even one of the pioneers of fetal anesthesia, Mark Rosen, argues that fetuses don’t feel pain. As Annie Murphy Paul reported in The New York Times, the fetal-anesthesia protocols that Rosen pioneered are used worldwide, meaning that he “may have done more to prevent fetal pain than anyone else alive—except that he doesn’t believe that fetal pain exists.”
Rosen was the lead author of a 2005 article in The Journal of the American Medical Association reviewing over 2,000 articles on fetal pain. “Pain is an emotional and psychological experience that requires conscious recognition of a noxious stimulus,” Rosen and his colleagues wrote. “Consequently, the capacity for conscious perception of pain can arise only after thalamocortical pathways begin to function, which may occur in the third trimester around 29 to 30 weeks’ gestational age, based on the limited data available.”
“I have every reason to want to believe that the fetus feels pain, that I’ve been treating pain all these years,” he told Paul. “But if you look at the evidence, it’s hard to conclude that that’s true.” The use of anesthesia in fetal surgery, the article concluded, serves purposes unrelated to preventing pain, including keeping the fetus from moving and preventing instinctive stress responses.
Nevertheless, unlike other scientific claims put forward by the anti-abortion movement—about the putative connection between abortion and breast cancer, for example—there is a genuine empirical debate about these issues. After all, according to Mark Mercurio, a professor of pediatrics at the Yale School of Medicine, neonatologists broadly accept that extremely premature babies feel pain. Mercurio has cared for babies born as early as 23 weeks and says, “Based on the data I have seen and based on what I see clinically, I treat every baby in my intensive care unit as if they were capable of experiencing pain.”
The most well-known proponent of the fetal-pain hypothesis is Kanwaljeet J.S. Anand, a professor of pediatrics, anesthesiology, and neurobiology at the University of Tennessee. His argument is essentially that the cerebral cortex, the seat of consciousness that doesn’t fully develop until late in pregnancy, is not necessary to experience pain. Other mechanisms that develop earlier, he says, are sufficient. Thus, testifying before Congress in 2005, he said, “We cannot dismiss the high likelihood of fetal pain perception before the third trimester of human gestation.”
It’s possible that Anand is right, and his research is certainly worthwhile. As Mercurio, who holds him in high regard, says, “I don’t think we should slow scientific inquiry because we’re concerned about what legislators might do with it.” Nevertheless, it’s a minority view.
Should his research come before the Supreme Court, though, it might be enough. The 2007 decision upholding the federal ban on “partial birth” abortion gave the anti-abortion movement new hope of enacting broad restrictions. Many in the movement cite it as the impetus for the wave of fetal-pain laws. In that decision, Justice Anthony Kennedy wrote, “the court has given state and federal legislature wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Just how wide we’ll soon see.