Assessing Fetal Pain: A Response

A recent New York Times article appraised the fetal pain argument as a legitimate base work for abortion legislation. The article correctly pointed out that “one recent poll” found a majority of people would draw the line for abortion at 20 weeks of pregnancy. I would add that a number of polls further corroborate this finding. Polling by Quinnipiac, National Journal, Huffington Post, NBC/Wall Street Journal, and Washington Post/ABC News have all found that either a plurality or majority of Americans support limiting abortion after 20 weeks gestation, and that women support the measure in higher numbers than men. The tremendous public support for this common ground limit has provided momentum key to its success.

While the Times piece provides an excellent background on the strategy and history of the legislation, there remain two points that are misleading.

First, the author states that fetal pain laws are “based on disputed scientific theories” and that “most scientists and medical associations say that perception of pain is impossible without brain developments that occur well after 20 weeks.” But there is in fact much evidence to support the claim that babies feel pain.

Pain receptors are present throughout the unborn child’s entire body by no later than 16 weeks after fertilization, and nerves link these receptors to the brain’s thalamus and subcortical plate by no later than 20 weeks. The particular “brain development” that does not occur until after 20 weeks is the cerebral cortex. However, there is substantial evidence that the thalamus—not the cerebral cortex—is principally responsible for pain perception. In fact, in adults, excision/ removal of the cerebral cortex does not alter pain perception, but excision/ removal of the thalamus does.

Dr. Kanwaljeet S. Anand of the University of Tennessee stated in his report accepted as expert by a federal judge, “It is my opinion that the human fetus possesses the ability to experience pain from 20 weeks of gestation, if not earlier, and the pain perceived by a fetus is possibly more intense than that perceived by term newborns or older children.” This is due to the extremely vulnerable stage the baby is at in its development. Dr. Paul Ranalli, a neurologist at the University of Toronto, explains, “The pain system is fully established, yet the higher level pain-modifying system has barely begun to develop.” This explanation makes sense given that doctors administer anesthesia in utero

Dr. Colleen Malloy of Northwestern University summarizes the core of the debate in her expert testimony before the House Judiciary Committee: “There is no reason to believe that a born infant would feel pain any differently than that same infant were he or she still in utero. Thus, the difference between fetal and neonatal pain is simply the locale in which the pain occurs. The receiver’s experience of the pain is the same.”

The second claim that requires clarification is that post-viability abortions are illegal. The author says, “The Supreme Court, including Justice Kennedy, has repeatedly affirmed viability as the point at which the state’s interest in protecting life outweighs a woman’s right to control her body.” But in practice this standard has been grossly applied. The Guttmacher Institute points out that a majority of states permit abortion post viability to preserve the life or health of the woman. This is a deceivingly moderate standard given that “health” includes a vast range of mental health exceptions (including “mental distress”), and – arguably tellingly – that “fetal viability” is to be defined by each individual physician. 

Notorious late-term abortionist Leroy Carhart has been caught on video saying he performs elective post-viability abortions. Live Action films recorded Carhart saying that he would do an abortion on a 26 week old baby – and Carhart acknowledges that if the baby were to be born that day, it would have had a 50-50 chance of surviving.

Guttmacher reports that in 2011, 18,185 abortions were performed at or after 21 weeks gestational age. That is 18,185 babies subjected to an excruciating procedure that dismembers the baby’s limbs one by one after crushing and suctioning her skull.

 As the New York Times article points out, there is absolutely an upward trend of citizens who support federal legislation that bans barbaric late-term abortions. This is beyond a simple fad or rhetorical appeal to public sentiments. Opposition to late-term abortions is based upon scientific evidence.  It is centered on a profound commitment to protecting human rights.

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