Can a Fetus Feel Pain?

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In the rhetorical trenches of the culture wars, sometimes the best way to ambush your enemies is to echo them. Read some of the arguments in support of the Federal Unborn Child Pain Awareness Act, which the lame duck Congress debated on Wednesday, and youll be forgiven if you think they were drafted by a liberal crusader for women's rights. The law is presented as protecting a woman's right to know, and to make an informed consent. "Women should not be kept in the dark," argues Kansas Senator Sam Brownback, a sponsor of the bill whose stated purpose is "to ensure that women seeking an abortion are fully informed regarding the pain experienced by their unborn child."

Lawmakers and activists opposed to abortion naturally want to make sure that women know as much as possible about the procedure, the risks, and the alternatives. Each layer of restriction, from waiting periods to parental notification, reinforces the message that this is not a decision to be made lightly. The movement to make ultrasounds more available reflects the belief that women who see an image, watch a heart beat, are much less likely to go through with an abortion. More than 20 years ago, the video The Silent Scream helped to shift the public focus from the horror stories of women who had suffered back-alley abortions to the horror movie of a fetus undergoing one.

Now it all comes together: Brownback and Congressman Chris Smith argue for a woman's right to understand the experience of the fetus. Their bill would require abortion providers to tell patients that by 20 weeks after fertilization a fetus can feel pain, and to ask if she would like anesthesia for the baby. If she refuses, she would have to sign a waiver. Doctors who fail to follow the rules could face fines up to $250,000. "There is substantial evidence that by this point, unborn children draw away from surgical instruments in a manner which in an infant or an adult would be interpreted as a response to pain," the text of the bill states. "Congress finds that there is substantial evidence that the process of being killed in an abortion will cause the unborn child pain, even though you receive a pain-reducing drug or drugs."

It's hard to argue with a bill that aims to reduce suffering; but in this case it's also easy to sense an ulterior motive. The bill's supporters, which include most anti-abortion lawmakers and organizations, can argue that so long as abortion remains legal, the least we can do is make it merciful. But the bill's language makes it clear that in this case mercy is for monsters: it invites women to request pain relief for her baby, so that it will hurt less when, as the law states, "the unborn child's body parts are grasped at random with a long-toothed clamp. The fetal body parts are then torn off of the body and pulled out of the vaginal canal." The text notes that this concern for the unborn child's possible pain is in keeping with laws having to do with the humane slaughter of livestock and lab animals.

Most people have no problem with pain being part of the abortion discussion: a Zogby poll found that 77% of the public supported the idea of giving pregnant women information about fetal pain. Even NARAL Pro-Choice America, issued a statement saying it would not oppose the measure: "Pro-choice Americans have always believed that women deserve access to all the information relevant to their reproductive health decisions. For some women, that includes information related to fetal anesthesia options."

The question, however, is what information. Already the two sides of the abortion wars argue over state laws requiring doctors to warn of a heightened risk of breast cancer linked to abortion, despite something like a medical consensus that this link has not been proven. In this case there is dispute among researchers about when a fetus's nervous system and brain are mature enough to allow for pain, with some saying this occurs around 26 weeks, not the 20 weeks the bill stipulates. (An article in the Journal of the American Medical Association suggested pain was unlikely before 29 weeks; but the bill's defenders pointed out that some of the paper's authors were abortion rights activists with a clear conflict of interest.)

Another point of contention is that the law dates a pregnancy as beginning at the moment an egg is fertilized, as opposed to the standard definition, the point at which it implants in the womb. Were that to become a legally accepted definition, then those forms of contraception that may prevent a fertilized egg from implanting could be categorized as a form of abortion. That belief is what propels opposition to emergency contraception like Plan B.

Finally, the value of protecting a fetus from possible pain will in practice be balanced against the cost to the woman. A great many abortion providers would probably not be trained, equipped or insured to provide the kind of anesthesia the law gives women to right to demand. While it may reduce a fetus' pain, it also increases the woman's risk. Some women who might not be able to afford the added cost would be left only with the added guilt.

While the National Organization for Women denounced "this deceptive bill [that] will put women's health at risk and add one more barrier to abortion access," even some abortion foes questioned this particular strategy. Douglas R. Scott, president of Life Decisions International, worried that the offer of anesthesia might make women more likely to go through with an abortion. "The mother can believe she is making a benevolent choice, even as she simultaneously participates in a heinous act," he wrote on Christian Newswire. "I can hear it now. 'At least the fetus didn't feel pain...'"

There's nothing wrong with people opposed to abortion trying to discourage women from having them. But when the discouragement carries the force of law, it must be based on fact. Pain in adults is something of a mystery and a quandary; aware and articulate, we can describe what we feel — a sharp stab, a dull ache, a twinge, a pang, an agony — and yet still physicians argue over what to do and how to treat. Unlocking the secrets of the womb is surely harder, and the stakes for the mother high as well.

All those who have grown weary of these wars will be grateful that this may be the last for a while. With the G.O.P. still in control of Congress these last few weeks, they were eager to bring this to a vote; the activists believe in the value of the issue, the strategists in the value of forcing Democrats to vote against proposals that large majorities of Americans support. In the new Congress, the Democrats' agenda does not include placing new restrictions on abortion or making women think harder before having one. But that just means the argument will be moving to new battlegrounds.