September 17, 2013 — A dozen states and the House (HR 1797) have passed legislation that bans abortion after 20 weeks of pregnancy based on arguments that fetuses can feel pain, but the "highly complex" science of determining fetuses' neurological capabilities does not support this rationale, the New York Times reports.
The Supreme Court has ruled that abortions must be permitted until a fetus is viable outside the womb, which doctors believe is at about 24 weeks. According to the Guttmacher Institute, 98.5% of abortions occur before 21 weeks of pregnancy, which means that the 20-week bans affect relatively few procedures. However, both abortion-rights supporters and opponents view fetal pain laws as part of a broader attempt to narrow abortion access and foster opposition to abortion rights.
Fetal Pain Linked to Neural Development, Research Suggests
According to the Times, fetal pain research is continuously evolving because "so much about pain is undetermined." Scientists usually conduct pain research on children and adults, and the implications of those findings for fetuses are imprecise. In addition, scientists say it is difficult to determine whether a fetus is reacting in pain, as opposed to reflexes or stress hormones. Other experts argue that pain-sensing ability requires consciousness, which itself emerges gradually.
Regardless, "[m]ost scientists who have expressed views" on the issue concur that the neurological wiring required for a fetus to experience pain is not in place until after the time most abortions occur. For example, a 2005 study in the Journal of the American Medical Association found that fetal pain was unlikely before 27 weeks because feeling pain requires neural connections into the cortex that are not functionally developed until at least the 26th week. A separate 2010 review commissioned by Britain's Royal College of Obstetricians and Gynecologists said "most neuroscientists believe that the cortex is necessary for pain perception" so "the fetus cannot experience pain in any sense prior" to 24 weeks.
In 2012, the American Congress of Obstetricians and Gynecologists endorsed the research, arguing that findings in support of fetal-pain laws are not convincing "when weighed together with other available information."
Abortion-rights opponents often argue that surgeons' use of anesthesia and painkillers when operating on fetuses support their claim that fetuses can feel pain at that stage of development. Mary Spaulding Balch -- state policy director at the National Right to Life Committee -- said that if a "child who is waiting for surgery can feel pain, the child who is waiting for abortion can also feel pain."
However, Scott Adzick -- a fetal surgeon at Children's Hospital of Philadelphia -- explained that the drugs are given to fetuses to prevent maternal pain, immobilize the fetus, relax the uterus and block the harmful effects of a fetus' stress response.
Further, Mark Rosen -- who pioneered anesthesia in fetal surgery -- pointed out that even if a fetus could feel pain, it would not experience it during the surgery because the anesthesia given to the woman is so strong. The scientific basis for giving anesthesia to fetuses during surgery is that it "promotes healing," he said.
Abortion-rights opponents have cited research from Kanwaljeet Anand -- a professor of pediatrics, anesthesiology and neurobiology at the University of Tennessee's Health Science Center -- and Swedish neuroscientist Bjorn Merker to support the 20-week abortion bans. Anand's research found 25 years ago that premature infants who were not anesthetized prior to surgery experienced hormonal stress responses and impeded recoveries, which he said might reflect pain among infants as premature as 22 weeks. Merker's research in 2007 found that young children who were missing their cortex were able to smile and cry, suggesting that "the tacit consensus concerning the cerebral cortex as the 'organ of consciousness'" may "be seriously in error."
However, Anand told the Times that the "issue of fetal pain does not have much relevance for abortion, since more abortions are performed before the fetus is capable of experiencing pain" and that techniques can be used in later abortion procedures to prevent pain. Merker in an email said his research had only "marginal bearing" on fetal pain and "did not deal with pain specifically." Although Anand has testified on fetal pain in trials on laws banning certain abortion procedures, both he and Merker said they do not wish to be involved in today's politicized abortion-rights debates.
Scientists also note that if fetuses could perceive pain, then childbirth would be especially painful. Despite this, abortion-rights opponents do not advocate anesthesia for fetuses before birth, the Times notes (Belluck, New York Times, 9/16).