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Fetal Pain Legislation is Pure Politics Email Print

By RH Reality Check
12/07/2006 10:09:09 AM EST

By Tyler LePard

 

Today the House of Representatives will vote on the Unborn Child Pain Awareness Act, sponsored by reproductive health advocates' good buddy - Rep. Chris Smith (R-NJ).  This is the act that would require women seeking abortions be offered anesthesia for fetuses of 20 weeks or more and told that there is substantial evidence of fetal pain at that stage.  Rev. Haffner discusses this latest attempt to mandate bad information and Marcy Bloom examines the science and politics behind this issue.  And that's exactly what's going on - politics.

This is just another example of abortion counseling requirements that are medically inaccurate.  Fetal pain legislation is a common tactic used by abortion opponents to try to force women to continue their pregnancies.  In fact, five states already include counseling materials on fetal pain, despite credible scientific evidence that fetal pain is unlikely before the third trimester.  (And third trimester abortions are illegal - in fact, so called "late-term" abortions occur in the second trimester and "partial-birth" is not even a real medical term... but now we're getting off-topic.)

This bill puts politics in the doctor's office, without regard to sound science - so why isn't this bigger news?

Reproductive justice groups are walking a cautious line here.  Planned Parenthood Federation of America (PPFA) sent out select action emails and the National Abortion Federation (NAF) also strongly opposes fetal pain legislation, as does the National Organization of Women (NOW). But NARAL Pro-Choice America is taking a neutral position, releasing a statement that "women deserve access to all the information relevant to their reproductive health decisions."

Not surprisingly, most anti-abortion groups are strongly advocating for this legislation.  Of course the National Right to Life Committee, Concerned Women of America, Population Research Institute and Priests for Life all urge the passage of this bill.  However, there are some mixed feelings - the president of Life Decisions International feels that this legislation "also allows [the woman] to anesthetize her own conscience."  According to Operation Save America, "`Fetal pain' legislation is the typical National Right To Life (NRLC) `incremental' approach to end abortion." In their minds, the "bogus" bill has good intentions, but doesn't do enough.

   

Now, before you puke, let me tell you that it's not likely to pass - since the sponsors are expediting procedures to get the bill heard quickly, it would require a two-thirds majority... and even then there's not enough time for it to clear the Senate before Congress leaves town for the holidays. Why this last-ditch effort by conservative politicians in a lame duck session? To satisfy the anti-abortion base, of course.  They want to call out pro-choice politicians - who are on their own for this vote (the Democratic leadership are not trying to influence the outcome).  Reproductive health advocates in Congress will be forced to show their hands.  

But is that really a bad thing?  Only if politics trumps good health policy once again.

   

Republished from www.rhrealitycheck.org with permission.


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Fetal Pain Legislation is Pure Politics | 4 comments (4 topical, editorial, 0 hidden)
Let's look a little closer at the substance . . . (none / 0)
Those who assert that "fetal pain is unlikely before the third trimester" usually cite a 2005 article in JAMA.  That article became something of an embarrassment for JAMA after the editor told health reporters that she hadn't known, before publication, that the chief author was a medical student previously employed as a lawyer at NARAL, a coauthor runs a big abortion clinic, etc.

Also, the substance of that article has been critized by many specialists. For example, Dr. Sanjay Gupta, founder of the American Pain Association, wrote, "In the recent JAMA article on fetal pain, a similar presumption is being made that the fetus brain is not fully developed till 29 weeks and therefore fetus will not feel pain before that age. There is no evidence that a fully developed cortex circuitry is required to feel pain. In contrast, we do have evidence from the neonatal experience that this presumption is wrong."

By "neoatal experience," he was referring to the treatment of premature newborns, from 22 weeks on. Apparently it has been recognized for a couple of decades now that these premature newborns do experience pain, and steps are taken to minimize it to the extent possible, since it is stressful for them. Supporters of the bill reason that if these infants cry when stuck with a needle in the neonatal unit at, say, 24 weeks, then they are probably experiencing pain when their limbs are twisted off during a D&E abortion at 24 weeks. (The bill actually applies beginning at 22 weeks in the system used by ob-gyns, which starts the count at the end of the last menstrual period, about two weeks earlier than the actual fertilization.)

Supporters also cite a review of the research  literature by the the British Journal of Obstetrics and Gynaecology (the chief Brit ob-gyn journal), prepared by researchers who were not also political activists, which said: "Given the anatomical evidence, it is possible that the fetus can feel pain from 20 weeks and is caused distress by interventions from as early as 15 or 16 weeks." They often quote Dr. Kanwaljeet Anand of the U of Arkansas, one of those guys with an inch-thick resume, whose research tranformed pain control in premature newborns -- he wrote recently, "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."

It is correct that most of the abortions that the bill would affect are performed in the second trimester -- specifically, the sixth month.  (The bill would apply after 22 weeks in the LMP system, which is the start of the sixth month.)  Of course, this is the same period that produces many of the premature infant survivors who you see in the neonatal units -- there are some who survive and grow up if born as early as 22 weeks, many at 23 weeks, and most at 24 weeks and later.  All of this is weeks before the "third trimester."  However, some are also performed in the third trimester, and not always because of medical emergencies.  It is not true that third trimester abortions are "illegal."  The Supreme Court said that they must be permitted for "health," and that health includes emotional well-being.

By the way, the bill was voted on December 6 in the House.  It got a majority of 250-162, but this was short of the two-thirds vote needed to pass it under the procedure that was used.  A lot more about the debate is posted here:
http://www.nrlc.org/abortio n/Fetal_Pain/index.html

by CouldBeeWorse on 12/07/2006 12:12:49 PM EST

Misleading, politically-motived comment. (none / 0)
Gee, CouldBeeWorse. Interesting to see you popping up on prochoice blogs like Feministing, linking to the National Right To Life Committee.  And now you're here.  

Well, in response to your comment, it's interesting that you call the author of the JAMA article biased, but then try to give credibility to Dr. Gupta.  Why does the American Pain Association only have one thing on its website: the response on fetal pain?  

And you left out an important part of the JAMA editor's response.  "Indeed, JAMA's editor asserted that she would have published the NARAL affiliation if she had known about it. Her primary response to the controversy, however, was to defend the integrity of the scientific process, and to emphasize that because the review met the journal's standards for quality, it would have been published regardless." From Guttmacher.

Also, Marcy Bloom writes: The medical evidence looked at by the researchers, led by UCSF obstetric anesthesiologist Mark Rosen, does demonstrate that brain structures of the fetus involved in feeling pain do begin forming earlier in pregnancy, but likely do not function until the 28-30th week of pregnancy. That is when pain-signaling nerve pathways from the spinal cord to the brain are fully wired. In 1996, Stuart Derbyshire, MD, wrote about this subject for the British Medical Journal in an article entitled "Commentary: `Fetal Pain' is a misnomer." Dr. Derbyshire stated: "Though far from resolved, it is widely acknowledged that pain is a multi-dimensional experience incorporating sensory, emotional, and cognitive factors. If this multi-dimensionality is the basis of conscious pain experience, then we cannot attribute this to a fetus, which is naïve for all sensory experiences and all (of the accompanying) cognitive, affective, and evaluative associations."

So why should Congress mandate controversial information that is not credibly proven?  Politics should not trump sound health policy.

by RH Reality Check on 12/07/2006 04:07:32 PM EST

[ Parent ]
I'll address your points in the order raised . . . (none / 0)
Sure, I might pop up anywhere people are interested in having a substantive discussion on the issue.  Sadly, such interest is clearly lacking among the managers of your own "RH Reality Check," where you blocked me before I could say word one.  Moderators on a few of those other prochoice blogs also have a low tolerance for being contradicted, or for sarcasm -- but I don't include Feministing, where they let my post stand. The moderator here also seems more tolerant.  So far.

I don't see any rule posted here against linking to a document on the National Right to Life website, so I think I will do it again. They have a handy collection of stuff on this subject
at http://www.nrlc.org/abortio n/Fetal_Pain/index.html.  In fact, right now that site is the only place that I could quickly find that complete text of NARAL President Nancy Keenan's e-mail to journalists on the Unborn Child Pain Awareness Act, in which she said, "Pro-choice Americans have always believed that women deserve access to all the information relevant to their reproductive health decisions. For some women, that includes information related to fetal anesthesia options. NARAL Pro-Choice America does not intend to oppose this legislation."  For some reason, I could not find it posted on the NARAL website, despite apparent widespread interest in the statement.

Regarding Dr. Sanjay Gupta, I think you have a point regarding that particular link I posted -- looking at it more closely, it looks to me like somebody (and I don't know who) took his quote and made up a separate page to display it. I was too hasty in grabbing that particular link. But the quote that appears there also appears elsewhere and it is clearly is genuine.  Moreover, Dr. Gupta appears to have pretty good credentials -- he is the director of the Atlantic Pain and Wellness Institute in Philadelphia, and the top name on the editorial board roster for Pain Medicine News, which has a very substantial website that I know you will like, here:
http://www.painmedicinenews .com/index.asp?show=eboard

I find that Gupta was also quoted as an authority on this very subject of fetal pain by CNN medical correspondent Dr. Sanjay Gupta -- yes, the same name, no relation-- earlier this year.  (Gupta quoting Gupta:  "Until about 1987, the medical community thought newborns do not feel pain. We were doing circumcisions and even heart surgeries without anesthesia.")  I don't know of any evidence that either Gupta or Gupta has any ties to the anti-abortion movement.

I notice that you did not dispute the credentials of Dr. Anand, professor of anesthesiology and neurobiology at the University of Arkansas for Medical Sciences.  An no wonder, because he has an international reputation for his work in pediatric pain.
http://www.uams.edu/pediatr ics/faculty/Critical%20Care /Anand,%20Sunny.asp
Anand is the one who said, "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." He explains why in a great detail in a report accepted as expert by the U.S. District Court for the Southern District of New York.  It's here:
http://www.nrlc.org/abortio n/Fetal_Pain/AnandPainRepor t.pdf

I don't think I said anything to suggest that the JAMA editor would not have published the article if she had known of the author's associations.  I said that it became an embarrassment for JAMA because associations that should have been disclosed where not disclosed.  The paper was also criticized on substantive grounds by specialists with credentials more impressive than those of the authors.  Anyone can Google the episode and make up their own mind on that. Did I mention that a team of UK researchers also reviewed the available literature for the British Journal of Obstetrics and Gynaecology (the chief Brit ob-gyn journal) and reached very different conclusions from the JAMA bunch?  They wrote, "Given the anatomical evidence, it is possible that the fetus can feel pain from 20 weeks and is caused distress by interventions from as early as 15 or 16 weeks."

You refer also to an essay by Dr. Stuart Derbyshire in the British Medical Journal (1996).  Maybe I have it wrong, but my understanding is that Dr. Derbyshire is suggesting that the human fetus does not really "experience" pain because she has nothing to associate the painful stimuli to until after birth, no point of reference. This doesn't seem very convincing to me.  If you take a puppy just after birth and twist his ear, don't you think he will yelp, even without any life experiences or other experiences to compare it to? (Don't do it -- this is just a thought experiment.) Maybe that is not a real "experience" of pain in Derbyshire's book, but I bet it hurts.

Derbyshire also thinks the fetuses are sleeping. I would not be too sure that having one's limbs twisted off with forceps would not induce a sudden state of acute wakefulness.

Regarding your closing question about "why should Congress mandate controversial information . . .?," I refer you back to the Nancy Keenan statement, quoted above.

by CouldBeeWorse on 12/07/2006 05:59:50 PM EST

[ Parent ]
Problematic (none / 0)
Dear CouldBeeWorse,

I'm not going to keep going back and forth with you, but I will address a couple of things.  First of all, thank you for this discussion - I think it's important to have a dialogue.  

Secondly, we try to just block spammers on RH Reality Check. I just checked your username on the site and found that you are not blocked.  If you are having problems logging in or posting comments there, please email me: tyler@rhrealitycheck.org

Finally, my point about scientific evidence is that there is debate going on.  Respected researchers have found no evidence on fetal pain until later in pregnancy.  I'll take your word for it that there are also researchers who have found evidence.  But the important thing to realize is that it is not good policy to mandate unproven information.  Until the conflicting science is cleared up and truly proven one way or the other, fetal pain should not be given standing in Congress.  NARAL may be neutral on this bill, but other reproductive health advocates are not.

In addition, there are other problems with this specific bill that other authors have better addressed, such as its definition of the beginning of pregnancy (and therefore the ramifications this bill could have had on contraceptives) and giving the fetus rights and personhood equal to the woman.  

A woman knows best how to make personal decisions for her and her family.

Sincerely,
Tyler

by RH Reality Check on 12/08/2006 12:14:26 PM EST

[ Parent ]
Fetal Pain Legislation is Pure Politics | 4 comments (4 topical, 0 editorial, 0 hidden)
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