Can a fetus feel pain?
That question is at the heart of a wave of state laws banning abortion after 20 weeks of pregnancy, known as the Pain-Capable, Unborn Child Protection Act. A pain-based, 20-week abortion ban also passed the House of Representatives in June.
The debate goes at least as far back as a 1984 speech by President Reagan to the annual convention of the National Religious Broadcasters. “Medical-science doctors confirm that when the lives of the unborn are snuffed out, they often feel pain, pain that is long and agonizing,” Reagan said.
Antiabortion activists claim science is on their side. But in a brief supporting a lawsuit against the 20-week ban in Arizona, the American Congress of Obstetricians and Gynecologists rejects the idea of a credible body of scientific evidence that proves fetuses can feel pain before they can live outside the womb, generally around 24 weeks.
In Arkansas, a key hearing on the 20-week ban raised more questions than it answered about whether the pain threshold is a solid basis for abortion policy.
Wearing a white lab coat, Dr. Emidio Novembre spoke at the state House’s Public Health, Welfare, and Labor Committee on Jan. 31, 2013. “The fetus is not in a coma-like state and does in fact feel pain and is aware of what it’s feeling and when it’s being dismembered or burnt with hypertonic saline by 20-weeks gestation,” he said. “The fetus can perceive the pain, feels the pain, and tries to avoid the pain. The fetus is a person, and this person wants to live.”
Novembre is not an obstetrician or a gynecologist. He’s not even a medical doctor. He’s an osteopath and an anesthesiologist who runs a pain clinic in Elkin, N.C. An investigation into Medicare prescription rates by the nonprofit news organization ProPublica found that he was the second biggest dispenser in his state.
The sponsor of Novembre’s trip to Little Rock: a leading antiabortion group, National Right to Life, which confirmed that it paid for his travel expenses. He did not return calls and emails to his office from National Journal.
The bill’s sponsor, Rep. Andy Mayberry, vouched for Novembre’s credentials and said the bill was based on research conducted by Dr. Kanwaljeet Anand, a professor of pediatrics, anesthesiology, anatomy, and neurobiology at the University of Tennessee’s Health Science Center.
In a telephone interview, Anand said it’s possible for a fetus to feel pain at some point between 18 and 24 weeks. However, he said that is not an appropriate reason to restrict abortion and that he has declined to testify in a number of states that passed 20-week bans, including Arkansas. In the minority of cases in which abortions are done after 20 weeks of pregnancy, he said, there are ways to make sure the fetus does not feel pain.
“I’m not comfortable with the way my research is being used, simply because it’s being politicized,” Anand said. “This whole issue is being blown out of proportion by legislators taking fetal-pain issue as a forcing device, as a crowbar to close clinics and make abortion less available. I’m not pro-life. I’m not pro-choice. There are nuances that need to be examined by the patient and her physician, not by legislators who are operating on ideological principles.”
A different approach to fetal pain was raised by a physician who testified against the bill at the House hearing. Janet Cathey, a professor of obstetrics and gynecology at the University of Arkansas for Medical Sciences, described the severely deformed fetuses she has seen in her 23 years of private practice.
One woman who came in for a routine ultrasound at 20 weeks was found to have a child with renal agenesis, in which the kidneys fail to form. The condition means that amniotic fluid will not be produced, causing the uterus to contract. “The baby will not survive,” Cathey told the committee. “If it’s not squeezed to death in utero, it will slowly suffocate at birth.” Another patient had a baby with severe spina bifida. “This is a child that will never move. It will probably never cry, and it will die soon after birth. If not, it may live few weeks, a few months, and that will be time spent in invasive medical procedures, no doubt, and this child will endure much more pain and suffering.”
She added, “No one knows what they’ll do when faced with these decisions, and these are women who decided that the pain and suffering for their child would be less if they did not continue the pregnancy.”