In April, Nebraska passed a controversial first-in-the-nation law banning abortion of a fetus after 20 weeks' gestation. Now, in a blow to America's anti-abortion lobby, a British report has undercut the case for the measure, finding that fetuses at 24 weeks or less do not feel pain and exist in a state of "sedation" even afterward.
The report, commissioned by the British government and published this week by the Royal College of Obstetricians and Gynaecologists, consists of a review of studies conducted since 1997 on the neuroanatomical and physiological development of the fetus. It concludes that fetuses at the 24-week stage of development do not possess the wiring to transmit pain signals from the body to the brain's cortex. Even after 24 weeks, the fetus likely exists in a state of "continuous sleep-like unconsciousness or sedation," due to the presence of chemicals such as adenosine in the surrounding amniotic fluid.
Since the 1973 Supreme Court decision in Roe v. Wade, the debate in America over abortion rights has taken place in something akin to a tinder-dry forest: each new piece of scientific data has the potential to launch a blaze. Of late, much of the focus has moved to the state level, where both the pro-choice and anti-abortion lobbies have sought to make incremental gains. Florida's legislature, for example, passed a law requiring women to view an ultrasound and listen to a doctor describe the fetus before proceeding with an abortion; the bill was vetoed by Gov. Charlie Crist. (For a full list of state initiatives, see this list by Counterpunch's David Rosen.)
Nebraska is the only U.S. state so far to ban abortion based on the concept of fetal pain. (Several states, including Minnesota, Oklahoma, and Texas, require doctors to tell patients that fetuses can feel pain after 20 weeks.) However, the very notion of a 20-week threshold is out of step with the U.S. medical consensus, as indicated by a 2005 review by The Journal of the American Medical Association, which found limited evidence "regarding the capacity for fetal pain" and that such pain was "unlikely before the third trimester" (28 weeks).
As NEWSWEEK has noted, Nebraska's move is significant because it represents a direct challenge to the notion of "fetal viability"—the point at which the fetus is capable of meaningful life outside the mother's womb. In the well-known 1992 case of Planned Parenthood v. Casey, the Supreme Court described this point, essentially 22 to 24 weeks, as the legitimate trigger where a state could outlaw abortion (with exceptions for the mother's life or health). The Nebraska law moved the goalposts to earlier in a woman's pregnancy—and this was a tremendous victory for anti-abortion activists. Little wonder the pro-choice lobby is likely to mount a constitutional challenge.
Now, as well as discrediting the Nebraska law on scientific grounds, the British finding may reduce momentum for similar laws in other U.S. states. But the verdict of science tends to be in the eye of the beholder. As noted in The Wall Street Journal, another strain of research suggests that 18-week fetuses respond with flinching or other physiological changes during surgery. Pro-life groups have also countered that Dr. Kanwaljeet Anand, a leading researcher in pediatrics and anesthesia, was not consulted by the report's authors. Anand testified in Congress in 2005 that most fetuses at 20 weeks would perceive an abortion procedure as "painful, unpleasant, noxious stimulation."
Allan Templeton, chair of the working group that produced this week's report, has responded by describing Anand's expertise as based mainly on premature infants—his testimony on fetuses was "opinion." He also noted a crucial distinction between reflex responses and actual expressions of pain. With passions entrenched on both sides, it is likely the issue of "fetal pain" will continue to polarize and sour America's abortion debate—even if this week's British report suggests it belongs closer to the medical fringe.