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The Politics of Fetal Pain: Why This Is Not A Legislative Issue

I read with interest the recent
by my colleagues Paul Burcher and Claire Horner entitled “The Politics
of Fetal Pain”. In their blog they discuss the recent
pain bill
passed in Utah, which “requires the use of general anesthesia on women seeking
abortions at 20 weeks gestation or later.” At stake is the concern that fetuses
may be capable of experiencing pain by 20 weeks, which has prompted 12 states
to restrict or prohibit abortions from that point on, instead of 24 weeks,
which is the current standard.

Burcher and Horner remind us that the issue of fetal pain has
been a source of contention for
which has led to “several states restricting or
prohibiting abortions
 20 weeks or later on the basis of potential fetal pain.” The
authors are very much aware of the possibility that anti-abortion advocates may
be using this issue as a convenient means by which to place additional limits
on abortion rights of women. Which is to say, anti-abortion advocates
supporting these restrictions on women’s reproductive rights may be using the
fetal pain issue as a means to restrict abortion rights. Even if they do have a
bias in creating this law, Burcher and Horner still believe that the law itself
is justified.

Though I would
share a concern about the possibility of fetal pain, if I had reason to believe
there were evidence to support it, I disagree that the appropriate next move
ethically is to join forces with a legislative agenda of politicians whose
interests go far beyond the issue of fetal pain. My worry is that such
legislative actions in fact usurp the professional role of physicians as
medical experts of scientific data to set appropriate standards for medical

I accept that
the possibility of fetal pain at 20 weeks is a theoretical possibility. But to
the extent I find such a claim plausible I would do so by placing my confidence
in scientific evidence, which to date is questionable. The paper from which
Burcher and Horner take their evidence about fetal pain comes from an author
who makes it clear in his writing that he believes abortion is
an act of unjust killing.
This is not an unreasonable moral position nor does it mean that he is not
accurate in his assessment of the medical and scientific evidence regarding
fetal pain. But it does raise concerns about his ability to assess and write
about data of fetal pain without bias. Is he following the evidence or is he
interpreting the evidence to support his preexisting moral views? The answer is
we just don’t know, in the same way we don’t know if the Utah state legislature
is really concerned about the possibility of fetal pain beginning at 20 weeks
or is their real goal to place additional restrictions on abortions?

want to make it clear that people, including bioethicists, legislators, and the
public at large, have every right to advocate, based on their understanding of
the evidence, to ensure that fetuses do not suffer during abortions from 20
weeks and beyond. My only point is that such advocacy should not be expressed
in laws that impose standards of care on how physicians practice medicine. Such
advocates may retort, but why should I think that the medical profession or the
scientific community is unbiased? Could it be the case that these professional
bodies are abdicating their professional, moral obligations to reduce the
possibility of human suffering? Of course that is a theoretical possibility.
But in an era where the role of science is grossly misunderstood and under
attack by many advocacy groups, those of us in bioethics must champion the standards
of scientific research and judgment by medical professionals to produce
evidence that is unbiased and reflects the best available understanding of
important empirical questions, such as, can fetuses feel pain? This is not an
ethical question, i.e. it has nothing to do with whether or not fetuses have
moral standing as human beings—rather the question is purely a matter of getting
the facts as clear as possible in determining at what point in the development
of a human fetus is there a physiological basis for experiencing pain. This is
exclusively the scientific issue about which scientific and medical experts must
decide based on the best available evidence.

where should we look for such an understanding of the data on fetal pain? The
answer is we should rely on the experts on such matters as reflected in the
opinion from
the American Congress of Obstetricians and Gynecologists (ACOG), which
concluded “
fetal perception of pain is unlikely
before the third trimester. Although ultrasound monitoring can show
intrauterine fetal movement, no studies since 2005 demonstrate fetal recognition
of pain.”

I hasten to make it clear that it is
always possible current scientific opinions will need to be revised based on
new data. There are many examples that bear out this point. But we should
realize just how procedurally disruptive and even iconoclastic it is to impose
standards legislatively onto medicine because, in effect, we don’t trust or
have faith in the integrity of medical experts to be fair or unbiased
themselves. For doing so indicts the institution within our democratic system
whose defined role and responsibility is to be the arbiters of empirical
disputes. The process, i.e. the scientific method they use is by definition one
that has the least chance of bias. And without robust confidence in the
scientific enterprise and the knowledge that is generated, bioethics loses its
footing to make moral assessments and judgments. Thus I agree with the view of

“Sound health policy is best based
on scientific fact and evidence-based medicine. The best health care is
provided free of governmental interference in the patient-physician
relationship. Personal decision making by women and their doctors should not be
replaced by political ideology.”

Committing ourselves to make
decisions based on scientific evidence, both in individual cases and at the
policy level, requires us to always stipulate that our knowledge today may not
be getting things exactly right. Advocates for the possibility of fetal pain,
and I may be one of them, should not be quiet. They have every right and
perhaps an obligation to express their concerns. But to conclude that ACOG
refuses to accept the possibility of fetal pain because of politics—the fear of
having to possibly create new standards about which they may fear a backlash
from prochoice advocates or that they really do not believe a fetus has full
moral standing—is to lose trust and confidence in an essential democratic
institution, and indeed risks becoming cynical and riding roughshod over the
role of professional medical expertise.

Thus, I conclude the Utah bill was
not an appropriate action for the legislature to take, even if there is eventually
scientific evidence that supports their concerns. I understand
that there are some medical concerns about which a state legislature may appropriately
pass laws—assisted suicide or narcotics—if there is a clear and compelling
public interest. But I submit, since there is no clear and compelling evidence,
the issue of fetal pain is not one of them.

The Alden March Bioethics Institute offers a Master of Science in Bioethics, a Doctorate of Professional Studies in Bioethics, and Graduate Certificates in Clinical Ethics and Clinical Ethics Consultation. For more information on AMBI’s online graduate programs, please visit our website.

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