TPM Cafe: Opinion

No, Science Doesn't Back 20-Week 'Fetal Pain' Abortion Bans

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AP Photo

The New York Times laid out the issue well this week when they detailed what they called the "complex science" behind fetal pain. Nearly every expert they interviewed said that fetuses don't feel pain until later in pregnancy, sometime between the 24th the 27th week, when their brains are more developed. Both the researchers and clinicians who said fetuses don't feel pain at 20 weeks and the one scientist who said they might were clear that "they did not think their work or current evidence provided scientific support for fetal-pain laws." Even the American Congress of Obstetricians and Gynecologists asserts that:

"The medical profession produced a rigorous scientific review of the available evidence on fetal pain in Journal of the American Medical Association (JAMA) in 2005. The review concluded that fetal perception of pain is unlikely before the third trimester. No new studies since the publication of the JAMA paper have changed this dominant view of the medical profession."

Who was the only "expert" the Times could find to certify that fetuses feel pain and so abortion should be restricted? Mary Spaulding Balch, the state policy director for the National Right to Life Committee.

The very scientists who NRLC and Balch regularly cite to support their political positions were quick to say that their actual work doesn't bolster pro-life claims. Balch was quoted in an attempt at journalistic balance, with the New York Times aiming to show both sides of an issue. But as Dr. Anne Davis told reporter Katie McDonough at Salon.com, both sides of this issue aren't equally credible: One is stating scientific fact. The other is stating an opinion and declaring it fact. "[B]ecause of this idea of 'journalistic balance,' media outlets will say, 'Well we have a doctor who says that fetuses do feel pain, and we have another who says they don't.' Well, that's like saying, 'We have someone who says it's 40 degree outside and someone who says it's 60 degrees outside,'" Davis said. "Take the actual temperature. You can have opinions about things, but the evidence is what it is."

The evidence points to the conclusion that fetuses probably don't feel pain at 20 weeks, but that anti-abortion groups are happy to twist the facts for their purposes. All of the scientists quoted by the Times refuted pro-life talking points and objected to their work being used to promote abortion restrictions. One said he was unaware that his research on children missing part of their brains was being used to support pro-life claims about fetal pain, since his work only has "marginal bearing" on the issue; interested in scientific inquiry rather than politicking, he offered little commentary beyond his opinion that politics "infected" the issue. His work is mentioned a dozen times in one pro-life report titled "Fetal Pain: The Evidence." Another once thought fetal pain at 20 weeks was "a major possibility;" after more research he concluded that before 24 weeks, fetal pain "is not possible at all." He's nonetheless cited in the same pro-life report 27 times.

Yet another scientist often mentioned in pro-life position papers in support of fetal pain restrictions on abortion is Dr. Kanwaljeet Anand. He testified on his research before a congressional committee and in trials, but has since stopped. His intent was to open up the scientific discourse; instead, he's been used by pro-life groups to forward an ideological agenda, and, he says, "it's just gotten completely out of hand."

Anand, whose view is a minority in the field, says his research indicates that fetuses may feel pain as early as 18 weeks. Even so, he says, that has virtually no bearing on abortion, since just over 1 percent of abortions occur after 21 weeks. The few procedures that are occurring after 20 weeks aren't happening because women enjoy having later-term abortions. They happen because 20 weeks is right around the time doctors are able to detect a range of severe fetal abnormalities. If fetuses at that stage do in fact feel pain, doctors can use particular techniques to mitigate it. If those techniques are unavailable, anesthesia is an option, although a less-ideal one -- it presents potential complications for the pregnant woman.

That should be good news for pro-lifers, right? If the concern is actually fetal pain, then they should be pleased to know that there's a nearly universal consensus in the medical community that fetuses cannot possibly feel pain in 98.5 percent of abortions. For the other 1.5 percent, the majority of scientists believe pain is still absent, but there are options for women to choose a procedure which would avoid any potential fetal pain, just in case. Problem solved. Instead of dedicating millions of dollars to promoting fetal pain abortion bans after 20 weeks, pro-life groups could focus on helping pregnant women in need or working with family planning organizations to promote sexual health education and contraception to prevent unintended pregnancies in the first place. Everyone wins.

Unfortunately, helping women or even decreasing the abortion rate do not top the pro-life agenda. Twenty week abortion bans justified by false claims of fetal pain may appear largely pointless and probably unconstitutional, not to mention addressing a problem that doesn't need solving, but they rally the base and give the most rabid pro-lifers something to focus on. They exhaust pro-choice groups, who are forced to leverage their own dollars, time, activists and legal teams to oppose these restrictions each time they're proposed or passed. And they do set the stage for a Supreme Court challenge before a court that has shown itself to be vulnerable to the brand of factually-challenged condescending sexism pushed by anti-abortion groups.

Promotion and passage of 20-week abortion bans won't actually prevent very many abortions. But the bans will normalize the idea that fetuses feel pain at 20 weeks, untrue as it may be, and set the stage for pro-life leaders to increasingly tighten that timeline. They will continue to give the pro-life movement the knowledge that if it just makes up claims and repeats them enough times, Republican politicians, significant swaths of the American public and perhaps even the United States Supreme Court will begin to take those claims as truth. And the ability to make your own unsupported opinions widely-accepted fact is much more powerful than fact itself.

Filipovic is a regular columnist for the Guardian's Comment is free and a blogger at Feministe. She holds a JD and BA from New York University.

[A young female scientist working in cancer research is looking through a microscope at cells. (Mirko Sobotta/Shutterstock)]