Last Thursday, pro-lifers held a press conference at the U.S. Capitol to announce the Senate’s introduction of the Pain Capable Unborn Child Protection Act. The bill would ban abortion 20 weeks after fertilization (i.e., 22 weeks gestation), based on the theory that this is the point at which a fetus can feel pain. As senators and activists spoke for the bill, posters arrayed beside them presented the data behind the legislation. The data didn’t come from studies. They came from polls.
This is the awkward reality of the 20-week ban. Morally, it’s grounded in reverence for life. Rationally, it’s grounded in science. But numerically, it’s grounded in politics. Twenty weeks isn’t the point at which a fetus feels pain. It’s the point at which a sufficiently impressive majority of Americans thinks abortion should be illegal.
Most medical authorities believe that a fetus can’t feel pain until well after 20 weeks. But suppose you reject that view. Supposed you accept the pro-life interpretation of every piece of data regarding fetal pain capability (even when the researchers behind the data reject these interpretations). In that case, you wouldn’t draw the line at 20 weeks. You’d draw it several weeks earlier.
You can also listen to William Saletan read this piece.
Pro-lifers have spent years assembling evidence of fetal neural development. Their favorite presentation—a 2004 report prepared by Dr. Sunny Anand, a professor of anesthesiology and neurobiology—never mentions 20 weeks post-fertilization or 22 weeks gestation as a developmental milestone in pain sensitivity. Their most elaborate document, a 33-page digest of research, quotes dozens of journal articles, but only one line says anything new is observed at 22 weeks.
The research digest and the Anand report highlight several aspects of development that emerge or finish around 20 weeks gestation, two weeks before the point at which the bill would prohibit abortion. But there’s a more salient convergence four weeks earlier, around 16 weeks gestation (14 weeks post-fertilization). Anand notes that sensory fibers in the fetus have “reached the cortical plate by 16 weeks of gestation, providing the final anatomical link for inputs to reach the developing cortex.” Accordingly, “Fetuses have been observed to exhibit hormonal stress responses to painful stimuli from as early as 16 weeks.” Studies show that “blood flow to the brain decreased within 70 seconds after painful stimulation in fetuses from as early as 16 weeks.” These fetuses show “changes in plasma cortisol, catecholamines and (s)-endorphin, and … the pulsatility index of the middle cerebral artery.”
Testimony delivered last year by Dr. Colleen Malloy, a professor of neonatology, notes that at 14 weeks post-fertilization (16 weeks gestation), “sensory fibers grow into the spinal cord and connect with the thalamus.” The research compendium backs her up with excerpts from an array of studies. “Spinothalamic fibers (responsible for transmission of pain) develop between 16 and 20 weeks gestation,” says a 2008 paper. “From 16 weeks’ gestation pain transmission from a peripheral receptor to the cortex is possible,” says a 2012 paper. “As early as 16-18 weeks, fetal cerebral blood flow increases during invasive procedures,” says another 2012 paper.
The gap between 16 weeks and 22 weeks is more than a matter of development. It dramatically affects the body count. According to the government’s most recent annual tally, slightly more than 7,000 abortions were performed in this country at or after 21 weeks gestation. Another 10,000 were performed at 18-20 weeks, and 10,000 more were performed at 16-17 weeks. From a pro-life perspective, banning abortion at 22 weeks instead of 16 weeks means sacrificing more than 20,000 babies a year—three-quarters of those who could be saved.
So why does the “pain-capable” abortion ban draw the line at 22 weeks? To get the answer, watch the press conference. First you’ll see the posters, perched on easels behind the speakers. “Americans Support Ending Late Abortions,” proclaims the first poster. It says 64 percent of the public thinks abortion shouldn’t be permitted in the second three months of pregnancy. The next poster says 63 percent of women think abortion shouldn’t be permitted beyond the point at which there’s substantial evidence that the unborn can feel pain.
Carol Tobias, the president of the National Right to Life Committee, opens the press conference. Her third, fourth, and fifth sentences are about polls. She says 64 percent of Americans, including 63 percent of independents, support the bill. She concludes: “In a country divided by politics, it is unusual to see some type of legislation that would garner two-thirds of the support of the American people.”
The next speaker is the bill’s sponsor, Sen. Lindsey Graham, R-S.C. It takes him less than 45 seconds to bring up polls. He notes that 70 percent of Americans support this or that pro-life bill. The question raised by the 20-week ban, he argues, is: “Can we form a consensus as to when we should act?”
Sen. Rob Portman, R-Ohio, follows Graham. He spends one sentence thanking the activists for their work. Then he walks over to the posters and reads the poll numbers to the audience.
The activists quote the same numbers. Anna Higgins of the Family Research Council says they show “a strong consensus” for protecting the unborn. Maureen Ferguson of the Catholic Association says Americans “overwhelmingly support limits on late-term abortion, by a 2-1 margin.”
A ban on abortions at 16 weeks wouldn’t produce these numbers. A Harris Interactive poll taken two years ago found that only 43 percent of Americans would restrict abortion to the first 12 weeks of pregnancy. To attract a narrow majority, you have to raise the limit to 16 weeks. And to get a 2-1 majority, you have to raise it to 20 weeks. Among independents, only 48 percent support a ban at 16 weeks, but 65 percent—very close to the figure cited by Tobias—favor a ban at 20 weeks.
That’s why the Pain-Capable Unborn Child Protection Act, even by pro-life reckoning, doesn’t outlaw abortion at the point at which a fetus can feel pain. It isn’t designed to fit the science. It’s designed to win.