How South Carolina Is Turning Abortion Lies Into Law

Science says fetal pain doesn’t happen before 28 weeks, but that didn’t stop South Carolina from banning abortion past 20 weeks.


The Pain-Capable Unborn Child Protection Act is headed to South Carolina Gov. Nikki Haley’s desk and, if she signs it as promised, hers will become the 17th state in the country to institute a 20-week abortion ban.

She will also be turning lies into law.

South Carolina’s ban, which contains an exception for the life of the pregnant woman but not for rape or incest, is premised on the notion that fetuses can feel pain as early as 20 weeks. That same logic has been used to institute 20-week bans in several other states and, most recently, to require physicians in Utah to administer anesthesia during abortions performed after 20 weeks.

The South Carolina bill, H.3114, which handily cleared the state legislature this Tuesday, states, “there is substantial medical evidence that an unborn child is capable of experiencing pain by twenty weeks after fertilization.” In fact, a review of fetal pain studies published in the Journal of the American Medical Association concludes that “pain perception probably does not function before the third trimester [28 weeks.]”

Instead of providing actual evidence to contradict the peer-reviewed JAMA article, South Carolina’s upcoming law simply retreads the same language that the National Right to Life Committee (NRLC) drafted for Nebraska’s 2010 20-week ban.

For instance, H.311 presents the fact that fetuses recoil from “stimuli that would be recognized as painful if applied to an adult human” as proof that they feel pain by the 20-week mark.

However, as the Annenberg Public Policy Center’s FactCheck.org found when they investigated this claim last year, a fetus withdrawing from a stimulus “does not necessarily reflect an experience of pain.” Instead, the scientific literature suggests that recoiling is a spinal reflex that can occur without a fully-functional cerebral cortex.

But South Carolina’s bill, like the laws it is modeled after, tries to refute the current medical consensus that fetal pain depends on the functioning of pathways in the brain between the thalamus and the cortex.

“[R]ecent medical research and analysis, especially since 2007, provides strong evidence for the conclusion that a functioning cortex is not necessary to experience pain,” the bill argues.

The anti-abortion website Doctors on Fetal Pain repeats this exact language, attributing the evidence to three researchers: Dr. Björn Merker, Dr. Kanwaljeet Anand, and Dr. Roland Brusseau.

Two of these researchers have already publicly disagreed with the way in which their findings have been used by anti-abortion advocates. In 2013, Dr. Merker told The New York Times that his frequently-cited research “did not deal with pain specifically.” Even Dr. Anand, who believes that fetal pain could start earlier than the literature suggests, told the Times that he used to testify in court cases on abortion bans but that he stopped because “it’s just gotten completely out of hand.”

Indeed, fetal pain laws have proliferated since the 2010 midterm elections with the assistance of the NRLC. The NRLC’s model language for the bill also appears in the federal version of the Pain-Capable Unborn Child Protection Act, which has been proposed three times. So far, federal attempts at a 20-week ban have been unsuccessful.

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These 20-week bans may not prevent fetal pain, but they will affect a small but vulnerable population of women.

According to the Guttmacher Institute, only about 1.5 percent of women terminate a pregnancy after 20 weeks. A 2013 study in Perspectives on Sexual and Reproductive Health found that many of these women were “raising children alone,” were “depressed or using illicit substances,” or “experiencing domestic violence.” Many of their abortions were delayed by fundraising difficulties or travel costs, the study concluded.

But state lawmakers have enthusiastically targeted these women for the past six years.

After Nebraska’s 2010 20-week ban, similar laws have been proposed multiple times in dozens of states. According to the reproductive health outlet Rewire, which tracks this legislation, the Pain-Capable Unborn Child Protection Act has been proposed six times in South Carolina alone across both houses of the state legislature.

“It is something we have been working on for four years,” one of the bill’s Republican sponsors, Rep. Wendy K. Nanney, told The New York Times.

That is a long time to spend turning misinformation into legislation.