Fetal pain laws gain steam as scientific knowledge improves

On August 2, in Phoenix, Arizona, U.S. District Court Judge James Teilborg decided to uphold the ban on abortions after 20 weeks except in cases of medical emergency. The law was founded on the substantial medical evidence available that proves an unborn child can feel pain during an abortion by at least 20 weeks gestation. Other states that maintain similar fetal-pain laws include Alabama, Idaho, Indiana, Kansas, Nebraska, and Oklahoma. According to Americans United for Life’s Legal Guide for 2012, “seven states require women receive information about fetal pain and/or the option of anesthesia for the unborn child” including Georgia, Minnesota, and Missouri.

The question of whether an unborn child has the capacity to feel pain or not has been debated for decades and despite numerous scientific studies, there is not yet a consensus as to when the child in the womb feels pain. But there is no question that at some point, the unborn child does feel pain. Whatever scientific evidence there is can be supported by anecdotal evidence of former abortion industry workers.

Abby Johnson, a former Planned Parenthood facility director, assisted in an ultrasound abortion. During the abortion Johnson saw the 13-week-old unborn child cringe and move away from the suction probe.

In 1985, Bernard Nathanson released the documentary film, Silent Scream. It revealed an abortion on a 12-week old unborn child. And Nathanson shared that it is clear through the film that the ultrasound abortion allows you to see the unborn child recoil from the abortionist’s instruments. While both accounts, Johnson’s and Nathanson’s, involve fetuses as young as 12 and 13 weeks, the courts are only accepting the medical evidence that states the fetus can feel pain at 20 weeks gestation.

And yet, despite such evidence, many abortion advocates still promote the opinion that the fetus does not experience pain. In August, the House of Representatives voted in favor of the Pain-Capable Unborn Child Protection Act which, if passed by the Senate and signed by the president, would ban abortions after 20 weeks gestation because the preborn child could feel pain. The Washington Post responded with an article by Harvard Law Professor Glenn Cohen, who argued that the basis for these laws is built on uncertain proof.

There are, however, prominent scientists who believe there is ample evidence that the preborn are capable of feeling pain. In the summer of 2011, Tom Bartlett of the Chronicle of Higher Education wrote an article posing the question “do fetuses feel pain?” His article includes the professional and informed opinions of numerous prominent scientists. Martin Ward Platt, a clinical leader in neonatal and pediatric medicine at Newcastle University and chairman of a committee whose focus is to study pain in children, criticizes the claim that pain can only be experienced after 24 weeks gestation because the fetus does not have the cortical connections necessary to feel pain until that time. Bartlett reported: “Platt writes that the report presents ‘no evidence for the contention that human fetuses lack awareness’ and argues that fetal hearing, sleeping and waking, and memory, suggest otherwise. While it’s true, he writes, that fetuses at 20 weeks lack a cortex, that doesn’t mean stress and pain can’t be experienced in other ways.”

Platt’s view is mirrored with that of Sunny Anand, a professor of pediatrics at the University of Arkansas. Bartlett writes that “Anand wrote in the London Times that research has shown that the cortex is ‘not essential’ for pain in adults, and therefore it shouldn’t be the standard for fetuses.”

Neither of these scientists is known to be pro-life. Platt favors the current abortion law in Britain which allows abortions up to 24 weeks gestation. However, these medical experts are critical of the ignorance and lack of evidence that underscores the voices of those who claim the fetus does not feel pain. And Bartlett makes the point that these are renowned scientists with credentials, not ignorant politicians or pundits enforcing their opinions on others.

Michael J. New, an American political scientist and an assistant professor at the University of Michigan-Dearborn, mentioned Bartlett’s article in his response to the Glen Cohen article in the Washington Post. New wrote for National Review Online that, “fetal-pain laws are a shrewd strategy for the pro-life movement.” He explains: “the Supreme Court has ruled that preserving fetal life after viability constitutes a compelling state interest. As such, states are allowed to restrict abortion after 23–24 weeks into pregnancy — albeit with a very broad health exemption. However, the Supreme Court has never ruled that viability is the only compelling interest that could justify protecting the unborn.”

Relatedly, seven states have made it a law to offer anesthesia for the unborn child, but pro-lifers are divided on the question of whether this is a wise political strategy. Theresa Collett, a law professor at the University St. Thomas School of law, addresses this divide in an April 2012 article, “Pro-Lifers Should Support Fetal-Pain-Based Abortion Bans.”

Collett recognizes that while many pro-lifers wish to ban the killing of the unborn, others maintain that if anesthesia were provided to eliminate the pain and suffering of the unborn then it would be alright for the woman to proceed with her abortion because it would be more acceptable. Collett argues: “Is the pain that the unborn child may endure during abortion similar in nature to the pain a dog or horse or some other domesticated animal feels when it is put down at the will of the owner?” Is the suffering of the unborn child the only reason why abortion must end?

Collett continues with a response to her own question: “But if we consider human pain unique and something of greater moral import than the pain of animals, even the pain of a beloved family pet, we may, in fact must, seek to eliminate the pain through limiting the action that causes that pain.”

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