Pain, Abortion, and the

Legal Status of the Fetus

Amanda C. Pustilnik

Center for Law, Brain & Behavior @MGH

Professor of Law

University of Maryland School of Law

What is pain?

Can fetuses feel pain?

What is the state of the law on fetal

pain and abortion?

I. What Is Pain?

Pain: “An unpleasant sensory and emotional

experience associated with actual or

potential tissue damage, or described in

terms of such damage. … Pain is always

subjective.”

- IASP standard definition of pain

Pain is distinct from nociception

Pain requires perception

Pain requires at least minimal consciousness

Source: http://www.iasp-

pain.org/Education/Content.aspx?ItemNumber=1698&&navItemNumber=576#Pain

I. What Is Pain?

Source: Susan J. Lee & Henry J. Peter Ralston, et al., Fetal Pain: A Systematic

Multidisciplinary Review of the Evidence, 294 JAMA 947 (2005)

II. Can Fetuses Feel Pain?

Medical consensus:

Fetuses likely cannot feel pain, at least until

after about week 27 of gestation

Why?

1. Brain structure development

2. Brain structure connection

3. Signal interpretation (Perception)

II. Can Fetuses Feel Pain?

Fetal brain development

Insular and thalamic input to frontal cortex

necessary to feel pain

First thalamocortical projections present

around week 24

First evidence of cortical activity relating to

sleep-wake cycles at week 30

Sources: Royal Coll. of Obstetricians & Gynaecologists, Fetal Awareness: Review of

Research and Recommendations for Practice 9, 23 (2010), available at http://www.rcog.org.uk/files/rcog-corp/RCOGFetalAwarenessWPR0610.pdf [RCOG

Report] ; Susan J. Lee & Henry J. Peter Ralston, et al., Fetal Pain: A Systematic

Multidisciplinary Review of the Evidence, 294 JAMA 947 (2005)

II. Can Fetuses Feel Pain?

Medical consensus:

Prior to thalamocortical connections, response

to aversive stimuli is equivalent to reflex –

perception of pain not required

Fetal perception of pain remains inferential

Consensus is that fetus has neurological

structures minimally necessary for pain to

occur (vs. nociception) after 27w

But, no ability to determine whether fetus

actually feels pain, even after that point

Sources: Susan J. Lee & Henry J. Peter Ralston, et al., Fetal Pain: A Systematic

Multidisciplinary Review of the Evidence, 294 JAMA 947 (2005)

II. Can Fetuses Feel Pain?

Fetal brain development

Chemical and hormonal environment of the

womb believed to keep fetus in sleep-like or

unconscious state

Accounts for likely differences between fetus

and premature infant of equal gestational

age

Sources: Royal Coll. of Obstetricians & Gynaecologists, Fetal Awareness: Review of

Research and Recommendations for Practice 9, 23 (2010), available at

http://www.rcog.org.uk/files/rcog-corp/RCOGFetalAwarenessWPR0610.pdf [RCOG

Report] ; Susan J. Lee & Henry J. Peter Ralston, et al., Fetal Pain: A Systematic Multidisciplinary Review of the Evidence, 294 JAMA 947 (2005)

Why Talk About Pain?

Discourse about pain in law is about two things:

Physical facts

Values about whose suffering counts

III. Lawmaking Relating to Fetal Pain

Fetal pain became a rallying point against

abortion starting in 1984

“Silent Scream” (1984) – edited ultrasound stills

spliced into a moving image appearing to

show fetus screaming during abortion

procedure

Then-president Ronald Regan spoke about

fetuses enduring extreme pain during

abortion procedure

Sources: The Silent Scream (American Portrait Films 1984), available at

http://www.silentscream.org; Francis X. Clines, Reagan Appeal on Abortion is

Made to Fundamentalists, N.Y. TIMES, Jan. 31, 1984, at A16

III. Lawmaking Relating to Fetal Pain

Three new kinds of laws relating to fetal pain

during abortion procedure:

Prohibit abortion at 20 weeks OR

Require fetal anesthesia OR

Require provider to inform patient that

“unborn child” will suffer pain “while being

killed”

III. Lawmaking Relating to Fetal Pain

Justification for the laws:

State needs to assert a “compelling state

interest”

Law may not be result of “improper purpose”

May not impose “undue” burden on woman

seeking abortion

Supreme Court said that states may draw the

line for abortion procedures at viability (Roe v.

Wade)

But states are not required to do so

III. Lawmaking Re to Fetal Pain: States

States passing legislation limiting abortion after 20 weeks post-fertilization, based on fetal pain 1. Alabama 12. West Virginia

2. [Arizona]

3. Arkansas

4. [Idaho]

5. Indiana

6. Louisiana

7. Mississippi

8. Nebraska

9. North Dakota

10.Oklahoma

11.Texas

Source:Guttmacher Institute

III. Lawmaking Relating to Fetal Pain

9th Circuit Invalidates 20-Week Abortion Ban:

Isaacson v. Horne, 716 F.3d 121 (9th Cir. 2013)

Supreme Court denied cert. (Jan. 2014)

2015: West Virginia Legislature passes almost identical

legislation, overriding governor’s veto

Source:Guttmacher Institute

III. Federal Lawmaking Re to Fetal Pain

What the Proposed Federal Legislation Says –

“There is substantial evidence that the

process of being killed in an abortion will

cause the unborn child pain, even though

you [may] receive a pain-reducing drug or

drugs.

Under [this Act], you have a right to know

that there is evidence that the process of

being killed in an abortion will cause your

unborn child pain.”

III. Lawmaking Relating to Fetal Pain

What the Proposed Federal Law Says –

“substantial evidence … there is

evidence”

“being killed in an abortion will cause the

unborn child pain … the process of being

killed in an abortion will cause your unborn

child pain.”

“even though you receive a pain-

reducing drug or drugs.”

Evidence … Child … Killed … Selfish …

III. Impact of Laws Relating to Fetal Pain

Impact of these laws

A. Limit small but significant category of

procedures

B. Symbolic and normative impact

III. Lawmaking Relating to Fetal Pain

A. Affects small but significant category of procedures

~1.5% of abortions carried out after 20w (Guttmacher

Institute)

Stage when certain fetal abnormalities evident on

ultrasound or through other testing

Often are abortions of “wanted” pregnancies (i.e., a

wanted pregnancy is terminated due to discovery of

severe fetal abnormality)

Can create barriers to performing procedure

Requires additional skills and facilities on part of provider

Risk of liability for providers

Provider who is not equipped to provide fetal anesthesia can

be liable under the law

III. Lawmaking Relating to Fetal Pain

B. Symbolic and normative impact

Symbolic lawmaking activity in state

Several states with fetal pain-based bans

do not have providers who perform

abortions post 20w (PI)

Literally affects no abortions in the state

Symbolic impact on patients & providers

Increasing acceptance of ideas of:

Fetus as person

Providers and patients as killers

III. Lawmaking Relating to Fetal Pain

Symbolic and normative impact:

“Ten years ago, patients never asked about this

[fetal pain during abortion]. Now we have

questions from some very distraught people —

It's a very emotional subject, and most people

aren't experts on pain physiology.”

- Dr. Anne Davis, Physicians for Reproductive Health,

Columbia University

Source: NPR, High Court's Pass On 'Fetal Pain' Abortion Case Unlikely To Cool

Debate, January 13, 2014. available at:

http://www.npr.org/blogs/itsallpolitics/2014/01/13/262178284/high-court-wont-

hear-fetal-pain-abortion-case-as-debate-rages

“The question is not ‘Can they reason,’

nor ‘Can they talk,’ but ‘Can they

suffer?’”

- Jeremy Bentham

JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND

LEGISLATION 311 (Dover Publ’ns 2007) (1789)

III. Lawmaking Relating to Fetal Pain

NO state or federal law requires fetal anesthesia for

fetal surgery.

Death penalty: SCOTUS holds execution need not

be painless

Some pain during execution comports with 8th

Amendment limits

Some pain may be inflicted incident to arrest and

during incarceration

Animal rights?

History of denial of pain relief in parturition

III. Lawmaking Relating to Fetal Pain