Behind a Movement, a Question: Can a Fetus Feel Pain?

Anti-abortion activist delivered a signed declaration and a plastic fetus to Mick Krieger, chief of staff for House Minority Leader John Boeher.
National Journal
Beth Reinhard
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Beth Reinhard
Oct. 10, 2013, 5 p.m.

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.”

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