June 27, 2011 — Six states have passed legislation to ban abortion later in pregnancy based on the disputed theory that a fetus can feel pain after 20 weeks of gestation, the New York Times reports. Proponents of the laws hope that discussing fetal pain will alter the public perception of abortion. They also aim to challenge the threshold set by the Supreme Court that abortion cannot be banned until the fetus becomes viable, which is usually at 24 weeks or later and determined on a case-by-case basis, according to Elizabeth Nash of the Guttmacher Institute.
"The suggestion that a fetus at 20 weeks can feel pain is inconsistent with biological evidence," David Grimes, a professor of obstetrics and gynecology at the University of North Carolina School of Medicine, said. He added that suggesting "that pain can be perceived without a cerebral cortex is also inconsistent with the definition of pain." A recent British review found, "Connections from the periphery to the cortex are not intact before 24 weeks of gestation and, as most neuroscientists believe that the cortex is necessary for pain perception, it can be concluded that the fetus cannot experience pain in any sense prior to this gestation."
Alabama, Idaho, Indiana, Kansas and Oklahoma passed laws modeled after a Nebraska law (LB 1103) that permits abortion after 20 weeks only if the woman's life is in danger. The laws do not include exceptions if the fetus has severe impairments but is still living. Lawmakers in Iowa advanced a similar measure, and the Times reports that abortion-rights opponents will push for more states to follow suit in 2012.
GOP presidential candidates have been asked to sign a pledge put forth by an antiabortion-rights group that includes a promise to advance fetal pain legislation. Former Massachusetts Gov. Mitt Romney and businessman Herman Cain have been criticized by some conservatives for not signing the pledge, which five other candidates have signed.
The fetal pain laws have not been challenged in court, in part because so few potential plaintiffs are available. Only 1.5% of the 1.21 million abortions in the U.S. each year occur later than 20 weeks of pregnancy, and many involve medical emergencies, according to Nash. Nancy Northup, president of the Center for Reproductive Rights, said the group will "file a legal challenge when the circumstances and timing are right." She added that the laws are "absolutely unconstitutional."
The laws can cause painful choices for women with wanted pregnancies who discover fetal abnormalities later in pregnancy and face the prospect that their fetus will not survive, according to the Times. The Times recounts the story of a Nebraska couple who faced a remote chance that their fetus would be born alive or able to breath after the woman's water broke at 22 weeks and her amniotic fluid did not recover. The fetus' lung and limb development had stopped, and the woman faced a chance of infection. However, because inducing labor for reasons other than to save the life of the fetus would be considered an abortion, the woman had to labor naturally. The infant lived for less than 15 minutes and the woman developed an infection (Eckholm, New York Times, 6/26).