The panelists were Qing Yang, MD, PhD (Department of Anesthesia, Massachusetts General Hospital) and Robert D. Truog, MD (Director, Center for Bioethics and Professor of Medical Ethics, Anaesthesiology & Pediatrics at Harvard Medical School; Senior Associate in Critical Care Medicine at Children’s Hospital Boston).
Even in the US, some controversy persists over the conceptual defensibility of brain death. Around the world, the philosophical defensibility of brain death is even more debatable. Watch as Dr. Qing Yang presents data regarding the adoption of brain death in China. She discusses cultural differences between Chinese and US medical professionals and patients that inform policy and law when it comes to brain death. Dr. Bob Truog, a prominent brain death critic, replies.
I read with interest the recent blog by my colleagues Paul Burcher and Claire Horner entitled “The Politics of Fetal Pain”. In their blog they discuss the recent fetal 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 some time, 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 care.
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?
I 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.
So 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 ACOG:
“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.
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