When can a fetus feel pain? Utah Gov. Gary Herbert valued an accountant’s answer to that question over the current medical consensus when he signed a law Monday requiring abortion providers to give fetuses anesthesia when performing an abortion after 20 weeks. It is the first law of its kind nationwide.
That belief is now codified into Utah state law. A section of SB 234 states that “substantial medical evidence from studies concludes that an unborn child who is at least 20 weeks gestational age may be capable of experiencing pain during an abortion procedure.”
In the words of Wikipedia: citation needed. The current medical consensus is that fetuses are not capable of feeling pain until weeks after Bramble’s arbitrary timeframe.
According to a literature review in the Journal of the American Medical Association, “pain perception probably does not function before the third trimester [28 weeks]” and therefore “discussions of fetal pain for abortions performed before the end of the second trimester should be non-compulsory.” The ability to perceive pain depends on the functioning of pathways between the thalamus and the cortex. The limited available evidence suggests this may not happen until as late as 30 weeks.
The Royal College of Obstetricians and Gynecologists (RCOG) conducted its own review and found that “connections from the periphery to the cortex are not intact before 24 weeks of gestation and, as most neuroscientists believe that the cortex is necessary for pain perception, it can be concluded that the fetus cannot experience pain in any sense prior to this gestation.”
Previously, Utah state law required a woman to consent to the administration of an anesthetic or an analgesic after 20 weeks. Now, the state overrides her consent unless she can prove that she would be physically harmed by anesthesia or that she has a lethal fetal anomaly.
“You’re talking to a woman who is being told that Curt Bramble, a CPA, is better at practicing medicine than the physician I have chosen,” Karrie Galloway, executive director of Planned Parenthood of Utah, told the Tribune. “That’s what’s infuriating.”
Where exactly did Bramble get the idea that anesthesia would be necessary after 20 weeks? According to the Tribune, the senator initially wanted to ban all abortions after that time, making Utah the 13th state to institute a 20-week ban. As the Guttmacher Institute notes, these bans are often based on the notion that fetuses can feel pain that early in a pregnancy (PDF).
But Bramble reportedly heard that such a ban might be deemed unconstitutional and decided to change course. Requiring unnecessary anesthesia was, apparently, the next best thing to a total ban.
The “substantial medical evidence from studies” that Bramble cites is anything but substantial.
When the nonpartisan Annenberg Public Policy Center tried to fact-check the 20-week fetal pain claim last year, they noted that one researcher whose 2007 paper on the cortex is frequently cited by abortion opponents later objected to their use of his work. Six years later, he told the The New York Times, “I was not aware that I had been cited in connection with the abortion issue,” adding that his study had only “marginal bearing” on the question of fetal pain.
Similarly, Dr. Kanwaljeet Anand, a University of Tennessee professor who believes that fetal pain may start earlier than current medical consensus suggests, has said, “I’ve been asked to testify many, many times [on abortion legislation] and I’ve turned it down. I feel it’s just gotten completely out of hand.”
Even Dr. Anand believes that fetal anesthesia is unnecessary in most cases. In 2013, he told the Times that delivering heart-stopping medication to a fetus after 20 weeks “would be fine, really, from a point of view of fetal pain.” If this medication could not be used, only then would he recommend an anesthetic—and it’s worth reiterating that this recommendation comes from someone whose views on fetal pain depart from the norm.
Indeed, Dr. Daniel Grossman of Ibis Reproductive Health told the Times with regards to Dr. Anand’s medical advice that fetal anesthesia can pose a danger to patients and should only be provided if women understand the risks.
But under the new Utah law, women will have a harder time learning about those risks. Previously, when anesthesia was not mandatory after 20 weeks, the law required physicians to inform women of the “potential medical risks to a pregnant woman that are associated with the administration of an anesthetic or analgesic.” That language is absent from the new law, replaced by the requirement that physicians repeat Bramble’s lie about “substantial medical evidence from studies” on fetal pain.
In other words, Utah now legally requires doctors to lie to women so they can administer medically unnecessary anesthesia without delivering full information about its risks. That’s not a law—it’s a lawsuit waiting to happen.