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Thursday, December 01, 2011

Fetal Pain: The Next Front in the Abortion Wars

Last April, Nebraska launched a national controversy when it prohibited abortion after twenty weeks of “post-fertilization” gestation (or 22 weeks using the more traditional LMP criteria for dating pregnancies). Since then, at least 6 other states have followed. These laws differ from previous attempts to prohibit abortion because they rely on the scientific claim that a fetus is capable of feeling pain, and the legal claim that states may prohibit abortions to prevent that infliction of pain.  These laws present a major threat to abortion rights in America as we know them.

Earlier this year, Sadath Sayeed and I published the first comprehensive legal and bioethical analysis of these laws in the Journal of Law, Medicine and Ethics. Here in more op-ed form is what we concluded (the actual paper is written in a more academic tone):

Since Roe v. Wade, and certainly since Planned Parenthood v. Casey the Supreme Court has consistently held that the Constitution only permits states to prohibit abortion in order to preserve fetal life after the fetus is capable of survival outside the womb, the so-called viability standard. Most medical professionals agree that viability now begins at approximately twenty-three to twenty-four weeks into pregnancy. Nebraska’s law represents an attempt to prohibit abortion before this viability threshold. 

These so-called fetal pain bills do not directly challenge the Supreme Court’s judgment that states can prohibit abortion outright to preserve fetal life only after viability. Instead, these bills assert a new theory for criminalizing abortion: The Nebraska bill, for example, states that “by twenty weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain.” Nebraska claims that preventing this pain is a compelling state interest that justifies prohibiting abortion.  

Hence, the loophole: while the Supreme Court has identified preserving fetal life as a compelling interest after viability, it has never said it is the only compelling interest that justifies restricting abortion.  Thus, these statutes might be thought of asking the courts to find that preventing pain to fetuses is also a compelling state interest. Alternatively, these states may argue that while preventing pain is not compelling on its own, when combined with the state’s growing (but not yet compelling) interest in preserving fetal life before viability the two interests together become compelling.

Whichever variant is adopted, the argument is flawed.

First, medical and psychological research show that pain is both a physical response and an experiential one. The neural structures that a fetus would need to “experience” pain do not develop until well beyond the point at which these bills prohibit abortion. It is this experience of pain—not the observable neuroendocrine, metabolic, and reflexive responses to stimuli to which these bills point —that matters in terms of the state’s interest.  Thus, these bills are based on a false construct. 

Second, even if fetal pain existed, the alleged experience could be prevented without outlawing abortion. Nebraska’s law notes that physicians often administer anesthesia to fetuses as proof that fetuses are pain-capable. The real motive for the use of anesthesia is muscle relaxation or prevention of neurodevelopmental problems later on and not, medically speaking, related to controlling pain. But if these fetuses were capable of feeling pain, administering anesthesia would likely prevent any sensation of pain, just as it does in children and adults. Thus, there is no legal reason to prohibit abortion at twenty weeks: We can achieve the same effect of preventing fetal pain by simply requiring administration of anesthesia to the fetus—and without burdening a woman’s right to abortion.

Even if these bills could overcome both of those objections, these states still have not shown why their interest in avoiding (the allegedly real and unavoidable) experience of fetal pain should outweigh a woman’s existing right to an abortion. While fetal pain might be relevant to the calculus (perhaps changing what abortion procedures are performed), it is not clear why it should be dispositive on the question of whether women have a right to abortion. For those who believe that the abortion right stems from a woman’s right to avoid unwanted invasions of bodily integrity, in particular, it is not clear why that right should give weigh to the interest in preventing fetal pain. For example, on Judith Jarvis' Thompson's famous (and still controversial) thought experiment of detaching oneself from being a human dialysis machine to a famous violinist (when one did not voluntarily undertake to do so), many have implicitly accepted this will be painful for the violinist. If that is right, it unclear that adding the additional fact of fetal pain changes the way in which the conflicting rights claims behind abortion should be resolved.

While they are scientifically and legally ill-founded, these bills should nonetheless be of significant concern to defenders of abortion rights.  Because they invite courts to further restrict abortion without overruling existing precedent, it is entirely possible that they will garner five votes on the current Supreme Court and thus change the face of abortion law as we know it.

This may be why none of the major abortion litigation groups (ACLU, Planned Parenthood) have challenged these laws head-on yet, for fear they will invite unfavorable precedent.

Posted by Glenn Cohen on December 1, 2011 at 08:59 AM in Constitutional thoughts, Law and Politics | Permalink


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Excellent, persuasive post, Glenn - and thanks also to Holly for the extra food for thought.

Posted by: anon | Dec 1, 2011 4:17:24 PM

Thanks for the great comment Holly (and greetings from lovely Hermance, Switzerland)!
My own read is that these fetal pain laws are part of an agenda to roll back abortion more generally, not targeting a particularly problematic form of abortion that has to do with pain, and this is just a "window of opportunity." That said, it one could imagine (in a different political reality from the one in the U.S. currently) that one could support such laws as a more benign pain-elimination justification. Such an argument would put a lot of pressure on your claim that we would be channeling women into earlier abortions but still protect those whose decisions came later for unavoidable reasons. Even then, one might wonder whether abortion opponents should really want to "rush" women into earlier abortions, since those abortions are likely to be less reflective decisions, and if women's attachments to their fetus grow over pregnancy one might think even those opposed to abortion do not want to push women into early abortions in the hope they will later decide to keep their fetus.
I will also note that while the dividing line of fetal pain is more "stable" than that of viability, it too may be pushed back if more (what we think of as unpersuasive) scientific work suggests pain even earlier.
More generally, while we oppose fetal pain as a dividing line, we don't think viability is a particularly great one either, as we suggest in the paper.

Posted by: I. Glenn Cohen | Dec 1, 2011 10:55:50 AM

Interesting post, iGlenn. The various statistics I've seen on this suggest that abortions between 20-24 weeks gestation comprise a pretty small percentage of total abortions performed in the US (although in numerical terms, this could still be in the thousands). This initially made me wonder about whether state laws restricting abortion on the basis of fetal pain are really capable of changing the face of abortion law as a practical matter, but I do see your point in terms of opening the door to recognition of new compelling interests.

One other comment, and a question. Your arguments about the experience of pain and use of anesthesia to avoid it are convincing. But it is interesting to compare fetal pain to viability in terms of stability of the dividing line. Obviously (as you, SCOTUS, and others note), viability is a shifting point in time, as medical technology improves the outcomes for extremely premature babies. The ability to experience pain, on the other hand, is something that appears to be developmentally fixed. If I'm really reaching, I suppose it could be impacted by "enhancement" technologies that might speed development, but that could get into all sorts of absurdities about enhancing a fetus that will be aborted. Anyway, this stability distinction isn't justification for using pain rather than viability as the appropriate threshold for regulating abortion, not least because the capacity to experience pain likely develops after the point of viability, but still maybe interesting to ponder.

Now, for the question. One could imagine that rather than being adopted specifically to restrict access to abortion, fetal pain laws might be developed with a potentially more benign goal of encouraging women to abort earlier rather than later, when those who adopt a sliding-scale view of personhood agree that abortion is less ethically problematic. This type of law would include exceptions for the life and health of the mother, and also for fetuses with severe medical issues (which may not be discovered until late in a pregnancy) that render them unlikely to survive once born, or to survive only in an extremely impaired state. There might even be exceptions for women who find out that they are pregnant very late in the game, to preserve adequate opportunity to consider abortion. The effect of this type of law may be to restrict late term abortions even before the point of viability, but considering that the mother's interests would still be pretty well protected, what's wrong with that? I suppose this just gets to the fundamental issue of why/whether a woman's right should be absolutely protected up until viability regardless of the reason she has for seeking an abortion.

Please disabuse me of any misunderstandings I may have revealed in the above. I normally try to veer clear of public commentary on abortion, but this is a really fascinating angle. Thanks.

Posted by: Holly Fernandez Lynch | Dec 1, 2011 10:07:14 AM

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