The New York Times reported Friday that anti-choice activists were using “disputed scientific theories” about fetal pain in a bid to overturn 40 years of settled law and ban abortion at 20 weeks. As bad as that sounds, it’s actually far too generous: Anti-abortion activists are using pseudoscience and denialism in their bid to radically redefine the constitutional basis of a woman’s right to choose. Roe v. Wade established that a woman’s right to control her body overrides the state’s interest in protecting a fetus until the fetus becomes viable, at roughly 24 weeks’ gestation.
Anti-choicers are trying to manufacture a non-existent controversy over fetal pain at 20 weeks to undergird a tendentious legal strategy. In voting to uphold a ban so-called “partial birth abortions,” Justice Anthony Kennedy, the critical abortion swing vote on the Supreme Court, argued that the state may ban a particular abortion procedure in the name of preserving respect for human life, without violating a woman’s right to choose, as long as there are other abortion procedures available to her. This is part of a post-Roe trend in which the Supreme Court has allowed states to place an endless array of obstacles in a woman’s path to an abortion – from mandatory waiting periods to medically unnecessary transvaginal probes – as long as they stop short of banning abortion itself. It’s not clear why the anti-choicers think that their 20-week abortion bans will get a sympathetic hearing from Kennedy, given that a 20-week ban would prohibit abortion by any method.
Let’s get one thing straight: 20-week fetuses do not feel pain. As the New York Times makes clear, the National Right to Life Committee settled on its legal strategy first and canvassed for fringe experts later.
This issue has been extensively reviewed by bodies of medical experts in the United States and the United Kingdom. The Royal College of Obstetricians and Gynecologists concluded in 2010 that fetal pain is impossible before 24 weeks because the basic neural structures of pain perception are not yet formed and functional. The American College of Obstetricians and Gynecologists maintains that fetal pain is unlikely before the third trimester, which starts at 28 weeks. It’s not a foregone conclusion that fetuses experience pain in utero even late in pregnancy. Some experts believe that sedating hormones from the placenta keep the fetus in a state of natural anesthesia.
Quite simply, 20-week fetuses can’t feel pain because their higher brain centers are not fully developed. At minimum, in order to feel pain, pain signals from the nerves must be transmitted from the spinal cord to the midbrain and finally to various parts of the cerebral cortex. Pain is such a familiar part of life that it’s easy to forget what complex, multifaceted phenomenon it really is. A lot of information has to be processed in order for a person to recognize that a sharp pain in her foot and experience the sensation as unpleasant. Pain has both a sensory (“sharp pain in my foot”) and an emotional component (ouch!), which appear to be controlled by different regions of the cerebral cortex. Thanks to functional neuroimaging, which allows scientists to observe live brains as they process information, we now have a pretty good idea of the pattern of activity in the cerebral cortex that is associated with painful stimuli.
At 20 weeks gestation, the midbrain centers that process pain signals from the spinal cord are not yet fully connected to the higher brain centers of the cerebral cortex. If pain signals from the nerves can’t reach the cerebral cortex, the fetus cannot feel pain.
General anesthetics probably suppress consciousness and pain perception by disrupting cross-talk between key areas of the cerebral cortex. If consciousness and pain perception can be shut off by disrupting cross-talk between the key parts of the cortex, it stands to reason that fetuses whose cortical centers are as yet unformed or unconnected are unable to feel pain.
Some prominent proponents of early fetal pain are willing to make intellectually dishonest arguments to advance their case. “There is universal agreement that pain is detected by the fetus in the first trimester,” neuroscientist Maureen L. Condic, testified before the House Judiciary Committee in May, shamelessly begging the question.
Everyone agrees that fetuses develop the capacity to reflexively withdraw from noxious stimuli during the first trimester. The question is whether those reflexive responses are evidence of pain. Reflexive withdrawal is not tantamount to feeling pain, as any neuroscientist should know. This kind of involuntary recoil can even happen prior to pain even in adult humans. If you accidentally put your hand on a hot stove, a spinal reflex may jerk your hand back before the pain signal from your palm can travel up your spinal cord to your brain. You may go on to feel some pain once the “too hot” signal reaches your higher brain centers, but the spinal reflex took your hand out of immediate danger before the nerve impulse could travel to your brain.
Condic argues that we can’t really know what a fetus feels and therefore that we should err on the side of caution and assume its reflexive behaviors reflect suffering. Like a climate change denialist, Condic is creating uncertainty in order to further her political ends. Climate change denialists argue that because we (supposedly) can’t know for certain that humans are changing the climate, we shouldn’t do anything to stop it. Condic is implying that because we can’t know for sure whether 20-week fetuses feel pain, we should ban abortion at 20 weeks.
Actually, we know a lot about how reflexes work and what they’re for. The whole point of withdrawal reflexes is to spur immediate action by bypassing the slow-moving conscious mind. Patients with spinal cord injuries may still reflexively jerk away from a pinprick they can’t feel. Even patients in persistent vegetative states who are completely unconscious may reflexively recoil from a pinprick.
The capacity of fetuses to mount hormonal stress responses to noxious stimuli is often trotted out as proof that they feel pain, but these changes are controlled by the autonomic nervous system with no cortical involvement. Patients under general anesthesia release stress hormones during surgery, even though they can’t feel scalpel.
Proponents of early fetal pain also seize on the fact that some maternal/fetal medicine doctors anesthetize fetuses during surgery in utero. The Royal College of Obstetricians and Gynecologists concluded that doctors should not anesthetize fetuses younger than 24 weeks purely for pain control because they lack the higher brain function to perceive pain in the first place, and therefore the drugs cause risk with no benefit. However, there are reasons besides pain control to anesthetize fetuses, such as keeping them still and dampening the hormonal stress response, which can adversely affect development.
The more intellectually honest proponents of the early fetal pain frankly acknowledge that the brain structures necessary for pain perception in full-term babies and adults aren’t in place until at least 29 weeks. A recent paper co-authored by Dr. K.J.S. Anand, the intellectual darling on the early fetal pain contingent, states that “pain perception during fetal and neonatal development does not engage the same structures involved in pain processing as those used by human adults.” In a heroic attempt at special pleading, the authors posit – without supporting evidence– that mid-gestation fetuses have their own unique pain sensing system that is made and unmade prior to birth. They say evolution predicts that the ability to feel pain and hunger will develop early because starvation and injury are among the first threats an infant will encounter when it is born. But the don’t explain why evolution would favor a separate temporary pain system for non-viable mid-gestation fetuses. The primary function of pain is to help us avoid harmful stimuli, but these fetuses don’t need to avoid in the womb and they can’t survive in the outside world.
The concession that 2nd trimester fetuses don’t have the cortical connectivity that underlies pain perception in adults leads to one of the more bizarre arguments for fetal pain at 20 weeks: The claim that we don’t really need a cerebral cortex to feel pain. “[R]ecent medical research and analysis, especially since 2007, provides strong evidence for the conclusion that a functioning cortex is not necessary to experience pain,” claimed the House Report on a recent fetal pain bill.
The main piece of empirical evidence for this claim is a paper by a neurologist who wrote up a few case studies of children who were born without cerebral cortexes who, allegedly, achieved much higher levels of consciousness than one would predict based on their lack of cortical tissue. The anecdotal evidence in the paper is uncomfortably reminiscent of those videos of Terri Schiavo appearing to track a balloon with her eyes while in a vegetative state. The paper claims that these children eventually learned to recognize familiar people, track objects, and appreciate music. Oddly, considering its currency in fetal pain circles, the paper doesn’t discuss whether these children were able to feel pain.
Fetal pain abortion bans based on bad science ginned up to advance a bad legal argument. The goal of these laws, which have already been struck down by lower courts on multiple occasions, is to create a new standard for regulating abortion. The current standard puts the woman’s right to control her body ahead of any state interest in the fetus prior to viability. The anti-choice contingent wants to use fetal pain as a wedge to establish the precedent that the state can override a pregnant woman before viability in the name of fetal wellbeing. Fetal pain bans may not sound like a big restriction on abortion. About 90% of abortions are performed in the first trimester. Pushing the deadline back from 24 weeks to 20 weeks would only affect a tiny fraction of cases, but the legal precedent would have profound implications for all abortion rights. It would give the state status to override a woman’s right to control her own body in the name of the fetus. If that precedent were allowed to stand it would affect reproductive rights at every stage of pregnancy, not just for later abortions.