In much of this country, over the last three years, pro-lifers have banned abortions 20 weeks after fertilization. They’ve justified these bans by asserting—contrary to the most authoritative studies—that fetuses at this stage of development can feel pain. Their assertions, in turn, are based on research by several doctors. But the doctors don’t buy the pro-lifers’ conclusions. They say their research doesn’t support the bans.
The 12 state bans (several of which have been blocked or limited by courts) begin with legislative “findings.” The findings parrot a 33-page report posted by the National Right to Life Committee and other pro-life organizations. The report cites the work of a number of researchers. Pam Belluck, an enterprising New York Times correspondent, contacted the researchers and asked them about the abortion bans. It turns out there’s a big gap between the science and the legislation.
The pro-life report cites Dr. Nicholas Fisk, a former president of the International Fetal Medicine and Surgery Society, 27 times. According to the report, Fisk’s work shows fetal “stress responses” that imply sensitivity to pain. But Fisk tells Belluck that he doesn’t buy the inference from stress hormones and cerebral blood flow to pain. Neural studies, he says, have persuaded him that until 24 weeks gestation—the current abortion limit in many states—fetal pain “is not possible at all.”
The report also cites Dr. Mark Rosen, a fetal anesthesia pioneer, 16 times. Rosen’s work, the report suggests, shows that painkillers and anesthesia are common during fetal surgery because unborn children can feel pain. But Rosen tells Belluck that the real purpose of such drugs during fetal surgery is to minimize dangerous movement and harmful stress hormones, thereby facilitating recovery. The drugs don’t signify medical belief in fetal pain. Dr. Scott Adzick, another fetal surgery expert cited in the pro-life report, makes the same point.
Dr. Bjorn Merker, a neuroscientist, gets 12 citations. The report argues that his work in children with severe brain defects shows that a fetus can feel pain before its cerebral cortex forms. But Merker tells Belluck that his research “did not deal with pain specifically” and has only “marginal bearing” on fetal capabilities. He says he wasn’t even “aware that I had been cited in connection with the abortion issue.”
Dr. Sunny Anand, a professor at the University of Tennessee, is the best-known mainstream proponent of the view that fetuses can feel pain as early as 18 weeks. The pro-life report cites him 25 times. Arizona’s fetal-pain ban quotes his work. NRLC and its allies often cite testimony he gave in 2004 and 2005. But Anand tells Belluck that “fetal pain does not have much relevance for abortion, since most abortions are performed before the fetus is capable of experiencing pain.” According to the most recent government data (see Table 8), only 3 percent of U.S. abortions were performed at 18 weeks gestation or later, and only 1 percent were performed at 21 weeks or later. Anand says that since 2005, he has turned down further requests to testify in regard to abortion legislation. That’s not his focus, he says, and the politicization of his work has “gotten completely out of hand.”
Anand doesn’t seem to like these sweeping bans. He tells Belluck that women and doctors should apply their judgment in the context of each case. “In the very few abortions where fetal pain could possibly occur,” he adds, we should “consider what can be done to avoid inflicting a lot of pain on the fetus.” One option, he notes, is to inject a lethal drug that quietly stops the fetal heart. Many late-term abortionists do precisely that. Another option is anesthesia. It’s easy to prevent fetal pain without forcing women to carry their pregnancies to term.
Pro-lifers don’t want to hear this. They want to channel your qualms about fetal pain into banning abortions, not regulating them. “The interest asserted here is not just one in diminishing or eliminating the unborn children's pain during an abortion,” says Mary Spaulding Balch, NRLC’s director of state legislation. “Rather, it is that the unborn child's capacity to experience pain is a significant developmental milepost, making the unborn child at that point sufficiently akin to an infant or older child to trigger a compelling state interest.”
The 20-week bans enacted by the states gloss over this gap. Their boilerplate language, mirroring the federal Pain-Capable Unborn Child Protection Act, concludes that “there is substantial medical evidence that an unborn child is capable of experiencing pain” at 20 weeks. In the next breath, they declare, “It is the purpose of this state to assert a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.” The underlying sleight of hand, from preventing pain to “protecting the lives of unborn children,” is never explained, despite Dr. Anand’s observation that the two policies are medically and morally distinct.
To my knowledge, no pollster has offered respondents the option of requiring fetal anesthesia or lethal injection prior to abortion after 20 weeks. How many people who show up in surveys as supporters of an abortion ban at 20 weeks, based on fetal pain, would drop that position and switch to the injection/anesthesia option? How many more would back off if the doctors in Belluck’s story came forward to testify about misunderstandings and misrepresentations of their work? A little more truth in this debate wouldn’t hurt.
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