Last week, the Journal of the American Medical Association published an article concluding that among fetuses, "pain perception probably does not function before the third trimester." Pro-lifers denounced the article as politics in the guise of science. Some of these criticisms expose flaws in the article. But they expose far larger flaws in the article's target: federal legislation that would force doctors to give women bogus "facts" about fetal pain.
The JAMA article reviews numerous studies of fetal development. It stipulates, "Pain is an emotional and psychological experience that requires conscious recognition of a noxious stimulus." You can be jabbed without feeling pain, or feel pain without being jabbed. The pain is the mental part. To have such an experience, you need a mind—specifically, links from your thalamus to your cerebral cortex. The article concludes, "Consequently, the capacity for conscious perception of pain can arise only after thalomocortical pathways begin to function, which may occur around 29 to 30 weeks' gestational age."
Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.
This directly contradicts the federal pro-life bill. The "obvious purpose of the authors of the JAMA paper was to damage the prospects for the Unborn Child Pain Awareness Act," the National Right to Life Committee concludes in an extensive critique. As NRLC explains, "The bill would require that abortion providers give women seeking abortions after 20 weeks ... certain basic information on the substantial evidence that their unborn children may experience pain while being aborted." The bill claims that "20 weeks after fertilization, an unborn child has the physical structures necessary to experience pain." Not so, says the JAMA article.
NRLC points out that some fetuses grimace or pull away in response to painful stimuli. But the JAMA article rebuts this argument. It distinguishes pain, which "requires cortical recognition," from "nociception," a system of physical responses driven by "peripheral sensory receptors" that develop many weeks earlier. To illustrate this distinction, the article notes that similar reflexive responses occur in anencephalic babies and in persistently vegetative adults. It also cites a study in which newborns with significant cortical injuries produced the same facial reactions as healthy newborns when their heels were punctured, casting doubt on the link between grimaces and consciousness.
NRLC suggests that the article relies on a subjective standard of pain that precludes proof of pain in animals or babies. I thought the same thing when I first saw its distinction between pain and "nociception." But further reading dispelled that concern. The article lays out objective standards—circuit formation and electrical activity—to measure the subjective engagement of the cortex. It justifies these objective standards by noting that we already use them to measure awareness in babies and adults. NRLC, noting that 23-week preemies "are given drugs to prevent pain," cites this as additional evidence that a 23-week fetus "needs protection from pain." But the JAMA article explains several reasons why doctors use such drugs on preemies without regard to pain relief.
Does NRLC make any valid points against the article? Yes. First, two of the authors failed to disclose potential conflicts of interest. One participates in late abortions; another worked for a pro-choice group. The authors' incomprehension that these relationships could be perceived as conflicts of interest illustrates the very bias they deny. Second, as NRLC notes, the article offers "no new laboratory research." It just analyzes and interprets previous studies. Third, it consistently errs on the side of doubting pain. First the fetus lacks the necessary circuits; then it has circuits, but they're "not specific" to pain; then there's "no human study" to prove they can convey pain; then there's no study to prove they're operational; then there's brain electrical activity, but it's "asynchronous" and "mostly discontinuous" until around 30 weeks.
These are fair indictments of the JAMA paper. But they're far more damning indictments of the legislation in whose name pro-lifers have attacked the paper. The Unborn Child Pain Awareness Act is a grotesque combination of pseudoscience, propaganda, and Republican big government. Like the JAMA article, it offers no new laboratory research. The JAMA article at least lays out its underlying research so you can judge for yourself. The pro-life bill doesn't. It simply declares, "Congress makes the following findings," and proceeds with a series of medical assertions whose truth or relevance are shredded in the JAMA paper.
If you don't trust an article in the Journal of the American Medical Association because two of its five medically trained authors are openly pro-choice, imagine the trustworthiness of "findings of fact" issued by scores of pro-life politicians, only a handful of whom are doctors. If you don't like the JAMA article's generalization that fetal pain doesn't really begin until 29 weeks, consider the pro-life bill's insistence that every doctor, on pain of losing her license and $250,000, "shall make the following oral statement" to any woman who seeks an abortion two months earlier in pregnancy:
The Congress of the United States has determined that at this stage of development, an unborn child has the physical structures necessary to experience pain. There is substantial evidence that by this point, unborn children draw away from surgical instruments in a manner which in an infant or an adult would be interpreted as a response to pain. Congress finds that there is substantial evidence that the process of being killed in an abortion will cause the unborn child pain ...
Yes, those are the exact words dictated by a bunch of politicians for your doctor to tell you. All of the words are false or misleading. They aren't even sincere in their emphasis on fetal pain. The bill asserts the barbaric painfulness not only of tearing off fetal limbs while the brain still functions, but also of partial-birth abortion, which kills the brain first. You can argue that partial-birth abortion is particularly awful, but anyone who makes that argument based on pain—as every cosponsor of this bill does—either doesn't understand partial-birth abortion, doesn't understand pain, or is just using pain as a rhetorical weapon.
The JAMA article doesn't say whether doctors should talk to women about fetal pain in the second trimester. It simply concludes that such discussions "should be noncompulsory" while we research "when pain-related thalamocortical pathways become functional in humans." That sounds reasonable. In the meantime, I hope every woman who's subjected to a deceptive, politically mandated speech about fetal pain gets a copy of the JAMA article. It's better than what she's getting from Congress.