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.