'Fetal Pain' Law Next Goal Of Anti-Abortion Groups

by Cynthia L. Cooper

(WE) NEW YORK -- Anti-choice groups are following up on their successes with President George W. Bush, who has thrown himself behind laws, executive orders and judicial appointments restricting reproductive rights.

Now they are pushing fetal pain, a subject of medical and political controversy for over 20 years, into the legislative arena.

"The natural question for the pro-life movement is: what should our next step be?" wrote Paul Weyrich, an anti-choice leader, in a June 25 column on the Free Congress Foundation Web site and republished widely on conservative outlets. Then Weyrich, the chair and chief executive officer of the Free Congress Research and Education Foundation, an ultra conservative think tank in Washington, D.C., went on to answer his own question and pointed supporters toward the Unborn Child Pain Awareness Act.

In May, anti-choice legislators introduced the proposed legislation that requires doctors to read a standard statement about a fetus' capacity to experience pain to women about to undergo abortions.

Around the same time last spring, the U.S. Justice Department was making fetal pain a centerpiece of its defense in cases brought by reproductive rights organizations challenging the constitutionality of a federal abortion ban signed by President Bush in 2003 in federal courts in three states.

It's a development that reproductive rights organizations now are having to wrangle with. In their countering efforts, pro-choice activists are struggling against proposed legislation that they say portrays a matter of long and ongoing medical controversy--a fetus' ability to experience pain -- as indisputable fact.

"It's really inflammatory anti-abortion propaganda," said Janet Crepps, a lawyer with the Center for Reproductive Rights, headquartered in New York. "Right out of the box, I think it's an inappropriate exercise of congressional power. Congress is taking sides in a very controversial medical debate. It's a very fuzzy area."

In the three federal-court trials on the constitutionality of the federal abortion ban -- in courts in New York, California and Nebraska -- the government put Dr. Kanwaljeet S. Anand on the stand to give his opinion about fetal pain.

Anand, a pediatrician and professor at the University of Arkansas for Medical Sciences, believes that a fetus experiences pain after 20 weeks gestation and that drugs provided to a pregnant woman do not anesthetize the fetus. Anand, who works with newborns, bases his analysis on fetal response to external stimuli such as needling or moving away from a sharp object.

The testimony seemed to strike a particularly strong chord with Judge Richard Conway Casey in New York, who repeatedly grilled doctors about whether a fetus feels pain. Although Judge Casey has not yet issued an opinion both he and Anand have been embraced as allies by the anti-choice Web sites, where their comments are widely quoted.

Unmentioned on those Web sites is medical division, not only about fetal pain, but pain itself.

When he was under oath, Anand acknowledged that it is actually not possible to measure whether a fetus experiences pain and that not all doctors share his view that fetuses can experience pain after 20 weeks gestation. He acknowledged that Britain's Royal College of Obstetricians and Gynecologists in London had studied the topic and reported that a fetus cannot experience pain until 26 weeks when nerve and brain structures are more fully developed.

These timing issues are a controversial matter in the bill, which adopts a novel approach to dating pregnancy. Medical texts measure gestational age from the last menstrual period and hold that pregnancy begins at implantation, which occurs one week after fertilization. The law, by contrast, applies the law to pregnancies that are "20 weeks from fertilization."

The distinction is crucial because it would encode another [and unrelated] tenet of anti-choice advocates that life begins at the moment of an egg and sperm union and that anything that interferes with the growth of a zygote, such as emergency contraception, is an abortion.

Experts do not even agree on what pain is. The International Association for the Study of Pain defines pain as a combined emotional, sensory and physical experience. Some doctors believe the emotive aspects may not be possible until birth.

"The medical community is split," said Crepps. "My problem with the proposed bill is that it only looks at one side."

The "pain awareness" act was introduced in the U.S. Senate and House of Representatives on May 20 by Sen. Sam Brownback (R-Kansas) and Rep. Christopher Smith (R-New Jersey). The bills have quickly gathered the backing of anti-choice groups, including the U.S. Conference of Catholic Bishops, Concerned Women for America, Family Research Council and the National Right to Life Committee.

Under the proposed law, doctors would read a statement authored by congress that tells a women that the fetus she is about to abort can feel pain.

"Congress finds that there is substantial evidence that the process of being killed in an abortion will cause the unborn child pain," a doctor must tell his patient, "even though you receive a pain-reducing drug." Doctors who fail to read the statement could be fined $100,000 to $250,000. States are also required to revoke or suspend their medical licenses, or face the loss of Medicaid funding.

The bill uses preliminary "findings" to justify the government's interest in fetal pain by making a parallel to legislation about the slaughter of livestock and the treatment of laboratory animals.

The doctor's scripted statement would include the advice that anesthesia could be "administered directly" to the fetus, an offer that some doctors say can't really honestly be made.

Dr. Hytham Imseis, a maternal-fetal specialist, professor and residency director at the Mountain Area Health Education Center in Asheville, N.C., says that administering anesthesia "directly" to the fetus would require use of an ultrasound-guided needle.

"The number of folks who can do that is very limited," he said and added that the women who did manage to find such a service would encounter much greater personal medical risk. Unlike Anand, the doctor who testified in the government's fetal-pain case in court, Imseis believes that anesthesia administered to a woman also anesthetizes a fetus.

"The bill is trying to cause alarm in women who would choose an abortion procedure," he said.

If the potential pain of fetuses is truly the concern, legislators might also take a hard look at standard childbirth practices in hospitals, said Susan Jenkins, a private lawyer in Washington, D.C., who represents midwives and birthing centers.

Fetal pain, according to Jenkins, may accompany Caesarian-section deliveries, epidural blocks and fetal probes. "If the federal government feels it appropriate (to offer advice on the matter), then why shouldn't they also care about pain in the process of being born in hospitals?"