If you ask people who identify as pro-choice about scientific developments in fetal pain, they might not be able to give you a substantive answer. Most pro-lifers asked the same question, meanwhile, will begin spewing information. They’ll tell you about how fetuses respond to invasive procedures and mention that surgeons routinely inject anesthesia into fetuses undergoing surgery. They’re also bound to bring up the latest statistics on neonatal survival. It’s an excellent technique, as advances in neonatal medicine have had the side effect of making people generally more queasy about abortion. After all, if a premature baby can be kept alive at just 22 weeks of gestational age, what does that say about the fact that the courts generally regard 24 weeks as the age of viability when it comes to abortion?
Today’s scientific conversation on abortion typically focuses on two distinct, sometimes interrelated, and often incorrectly equated issues: fetal pain and fetal viability. Fetal pain raises bioethical questions about abortion practices. Fetal viability is, of course, the cornerstone of abortion access in the U.S.; per Roe v. Wade, a woman can legally obtain an abortion up until viability, at which point the state’s right to protect a viable human outweighs a woman’s full right to make decisions about her body. These issues largely come into play with abortions after 20 weeks, which make up only 1 percent of all abortions in the U.S., but the cultural weight of such issues far exceeds their likelihood. Still, widespread understanding of the issues surrounding fetal pain and fetal viability is essential to the success of the pro-choice movement. “‘Can my baby feel pain?’ is what parents would ask when I started performing in-utero surgery 30 years ago,” said Dr. Nicholas M. Fisk, the deputy vice-chancellor of research at the University of New South Wales. Formerly the president of the International Fetal Medicine and Surgery Society, Dr. Fisk is one of the most well-respected maternal-fetal medicine specialists in the world.
In the early ’90s, the scientific community believed fetal pain wasn’t really possible, but with very few studies on the subject, Dr. Fisk and his co-workers set out to find a more definitive answer for his patients. He began by studying hormonal stress responses in fetuses undergoing invasive procedures, which culminated in the lead paper in a 1994 issue of The Lancet documenting significant stress responses. Spikes in adrenaline, endorphins, and cortisol during invasive procedures confirmed that the sensation of pain was a possibility.
Next, Dr. Fisk looked at biophysical responses and found that, just like babies who are short on oxygen, fetuses respond to potentially stressful medical procedures by redistributing their blood flow to the brain and away from the body. Dr. Fisk began to recommend the use of analgesics during fetal surgeries, which remarkably improve surgery outcomes.
Research like Dr. Fisk’s, on the presence of hormonal and biophysical stress responses, forms the basis of 20-week abortion bans that have been passed in 19 states. Nebraska’s 2010 “Pain Capable” act (which morphed into the 2013 ban passed by the House) pointed to the fetal stress response, evasion of certain stimuli, and the administration of anesthesia during prenatal surgery in fetuses over 20 weeks to support the argument that fetuses are capable of feeling pain at 20 weeks and thus women seeking abortions should be subjected to a cutoff at that point. Simply put, the pro-life movement has co-opted scientific claims and the Supreme Court has taken those claims seriously, even when deciding against them.
Given what his work initially seemed to show, it’s unsurprising that the pro-life community has repeatedly cited Dr. Fisk. That is, until it becomes clear to them that the scientific community regards his research as contrary to the pro-life position on the subject. “When people outside of the scientific community hear that fetuses have stress responses and face better surgery outcomes with pain relievers, they assume that means the fetus can experience pain,” Dr. Fisk said. “Intuitively, that makes sense, but that’s not a conclusion you can draw.” The presence of stress response could simply indicate the early development of an incomplete pain management system.
There are still large gaps in the scientific understanding of pain, which often pushes conversations about fetal pain into purely theoretical territory. But, the medical community largely agrees that the capacity of a fetus to feel pain isn’t likely until the third trimester. A systematic review published in the Journal of the American Medical Association in 2005 noted that to experience pain, the fetus needs neural connections into the cortex. The cortex starts developing around 23 weeks, but the full system doesn’t seem to take shape until well beyond the point of viability. EEG recordings, which track the electrical waves of the brain, “suggest the capacity for functional pain perception in preterm neonates probably does not exist before 29 or 30 weeks,” the review concludes.
In The New York Times, Dr. Mark Rosen, the study’s co-author, compared the fetus’ lack of fully developed feedback loops — essential to experiencing pain — to a non-working phone. “You can make a telephone call, but not till wires that connect our phones exist,” he said. “You can say the wire now exists, but nobody’s turned the service on.” The 2005 review also notes that some of the central evidence used by fetal pain proponents doesn’t indicate anything of the sort; “administration of anesthesia and analgesia serves purposes unrelated to reduction of fetal pain, including inhibition of fetal movement [and] prevention of fetal hormonal stress responses.”
There are still large gaps in the scientific understanding of pain.
Another large review conducted in the U.K. in 2010 reached similar conclusions. But the doctors cited most commonly by pro-lifers say their research on the subject of fetal pain is being misconstrued and doesn’t support abortion bans; Dr. Fisk’s work was cited 27 times in a report used by the National Right to Life Committee even though Dr. Fisk told me he doesn’t believe fetal pain is possible before 24 weeks. Dr. Rosen, who pioneered anesthesia in fetal surgery in the U.S., is cited 16 times. Dr. Donna Harrison, executive director of The American Association of Pro Life ObGyns, told me that “the facts are the facts” and that they indicate fetal pain is real. She said JAMA’s conclusions should be discounted because it’s a “political organization with blinders on.” She brought up stress responses and reflexes in fetuses undergoing surgery, but dismissed the entirely different conclusions drawn by the studies’ authors. “They just don’t want to see the truth because they’re invested in ripping babies limb from limb in the womb,” she said. Harrison’s argument has reached far beyond the confines of the pro-life movement, perhaps for the reason that it is intuitive more than scientific. Since the reflex responses of a developing fetus appear similar to those of an infant, it’s easy to assume the fetus is closer to a living, breathing baby. “There is nothing worse than a small child experiencing pain,” said I. Glenn Cohen, a bioethicist at Harvard, “so to ask people to consider the pain of an even tinier being, then look at research and draw a logical conclusion is hard.” That puts the pro-choice community in a tough spot. As Robin Marty, a writer and pro-choice activist, explained, “it’s generally understood that when the conversation focuses on the fetus, the pro-life side will win and when the conversation focuses on the woman, the pro-choice side will win.”
When Roe passed in 1973, fetal viability was understood to be around 28 weeks, but it’s been moved back with advancements in medical technology. It currently hovers around 24 weeks. These medical improvements raise a whole host of questions. A 2015 study in The New England Journal of Medicine documented a 5 percent survival rate among 22-week fetuses with intensive intervention at hospitals with advanced NICUs. The survival rate without severe impairment is 3.4 percent. When it comes to determining fetal viability, it’s also worth noting that the international scientific community takes studies of viability from the U.S. “with a grain of salt,” as Dr. Fisk said, since the data relies on asking women to provide the date they last had their period (not ultrasounds from the first trimester, the standard in many other developed countries) to determine the age of the fetus. “I saw that recent study and I wondered if a number of the neonates believed to be 22 weeks old were actually stunted 24-weekers,” Dr. Fisk said. “That would not surprise me.” In the majority of hospitals around the U.S., surgical intervention at 22 and 23 weeks is still unheard of. But the 2015 New England Journal of Medicine study has already been held up by pro-lifers as indication that our current understanding of viability is outdated, since some neonates can survive before 24 weeks.
A number of legal restrictions pro-lifers are trying to enact, like the ban on abortion after 20 weeks and the so-called “partial birth abortion” practice, are on the basis of fetal pain. Fetal viability arguments serve as ammo for the cultural battlefield. A single story of survival of an extremely premature neonate will always be more compelling than the statistics that point to the rarity of such an event. No matter how many women come forward to lay out the painful decision they made to terminate a wanted pregnancy after the discovery of fetal anomalies, a photo of a neonate with feet no bigger than a penny carries instantaneous emotional weight.
Pro-lifers like to depict extremely premature neonates as just really, really small babies. Pro-life news outlets routinely share preemie miracle stories, and use photos and anecdotes of fetuses from 7 weeks on to show that “incredibly tiny children are still living human beings, no matter their size or level of development.” But extreme prematurity often comes with a whole host of debilitating, lifelong, and sometimes fatal disabilities. In much the same way that the medical community is currently grappling with how far to push end-of-life care, the same question plays out with extremely premature neonates in obstetrics departments around the country as medics decide how early to intervene on fetuses not developing normally and with premature births, when to provide palliative care instead of active treatment. Hospitals are encountering what bioethicist Cohen has called “a clinically asymmetric outcome due to legally constructed definition of viability,” wherein “a fetus cannot be aborted but a neonate may not be resuscitated despite being the same age.”
A photo of a neonate with feet no bigger than a penny carries instantaneous emotional weight.
It’s also worth noting that 20-week bans on abortion don’t often protect a woman’s right to make decisions for a medically compromised fetus. One federal judge raised concern about this issue with regards to Arizona’s 2012 20-week ban that made abortion illegal even in cases of fatal fetal anomalies. (It was blocked by the Supreme Court in 2014.) “They’re basically born into hell and then die,” the judge said. Arizona’s solicitor general replied: “With due respect, that’s the woman’s problem.”
Unlike the shift in viability, brought on by medical advancements, the conclusive tests that determine fetal abnormalities that often lead to late-stage abortions haven’t budged. Women who get abortions after 20 weeks often do so because of fetal abnormalities in the heart or the brain. While the possibility of such abnormalities is detectable before 20 weeks, it’s essential to see how the organ will develop and conclusive evidence usually comes after the 20-week-marker. So if the 20-week abortion ban Republicans are pushing for on the grounds of fetal pain were to become national law, pregnant women in such situations would lose the ability to make decisions about the most humane end-of-life care for the fetus they’re carrying.
“Fetal personhood laws don’t always look or sound like an attack on abortion rights,” said Jessica Mason Pieklo, a writer and adjunct law professor in Boulder, Colorado, who often covers reproductive rights. “But when we have lawmakers and prosecutors who are willing to throw women in jail for miscarriages, it’s imperative that we put that together because it’s all based on that same sense of substitution of judgment by the state.” While fetal personhood laws rarely pass, fetal homicide laws offer another route to establish and expand the rights of fetuses. At least 38 states have fetal homicide laws; 23 of those apply to very early stages of pregnancy (“any state of gestation,” “conception,” “fertilization,” or “post-fertilization”). These types of laws “automatically pit the pregnant person’s legal rights against those of the developing pregnancy,” Mason Pieklo told me.
But as so many cases across the country have shown, gross violations of pregnant women’s bodily autonomy and right to make medical decisions happen with and without fetal homicide laws on the books. Women have been hauled into hospitals for state-mandated cesarean sections, arrested for being drug-dependent during pregnancy, and even imprisoned when a suicide attempt kills the fetus but not the severely depressed mother. In Louisiana, a woman who showed up at the hospital with vaginal bleeding was jailed for over a year on charges of second-degree murder before records revealed she’d suffered a miscarriage.
A 2013 study in The Journal of Health Politics, Policy, and Law documented 413 arrests or physical detainments of pregnant women between Roe’s passage and 2005. Such practices are on the rise; since 2005, the study’s authors have recorded an additional 380 cases. According to the study, poor women and women of color, particularly African-American women, were “overrepresented” among those arrested, detained, or otherwise deprived of liberty. “Some people say it’s because of the doctors’ fears of getting sued, but I think that’s wrong, since these are not the kind of women that sue,” George Annas, currently the director of the Center for Health Law, Ethics, & Human Rights at Boston University School of Public Health, once explained. “What I think happens is that a lot of doctors identify more with the fetus than with a woman who is different from them.”
Even though the legal divide between women with wanted and unwanted pregnancies has proven tenuous, with fetal homicide laws used against both, they’re often culturally depicted as opposites; one is carrying a baby, the other a fetus; one a mother, the other a monster, despite the fact that 59 percent of women who get abortions are already mothers.
The legal divide between women with wanted and unwanted pregnancies has proven tenuous.
Women with unwanted pregnancies forced to carry to term and those with wanted pregnancies coerced into c-sections against their will are two sides of the same coin. In a 2010 memorandum, the National Advocates for Pregnant Women wrote, “For people who profoundly oppose abortion, it seems logical that legislation could be carefully crafted to distinguish between pregnant women who seek to terminate their pregnancies and those who do not.” But because everything a pregnant woman does or doesn’t do can have an impact on pregnancy outcome and because criminal laws depend on the “extraordinary discretion” of police and prosecutors in applying intent, the organization said that it was "unable to find an example of a law that could be applied only to women who ‘truly’ intend to end their pregnancies while ensuring that pregnant women who do not intend to terminate their pregnancies or risk harm to their fetuses are protected from police investigation, arrest, and prosecution.” Forced interventions on some pregnant women harm all pregnant women; rooting out this hypocrisy is one way into the scientific debate.
When it comes to the research at play, the pro-choice movement has fought pro-lifers in court but not the court of public opinion. The fact that most pro-choicers don’t know much about an immense amount of data that continues to bolster their view speaks to the movement’s failure. Centering some conversations on the fetus is risky, but at this point, any other tactic seems an admission of guilt.