Fetal Pain Legislation: Women Deserve to Know

As medical technology advances and the body of medical knowledge increases, the amount of medical information on the ability of a fetus to experience pain continues to grow as well. These scientific advancements have prompted medical, legal, and ethical dialogue on the following questions: At what stage in fetal development can a fetus experience pain, and what impact would this information have on women and abortion law in the United States?

That a fetus can feel pain is an accepted medical fact. However, the question of when a fetus can experience pain has been the subject of some debate over the last two decades. [Note 1] The accepted medical consensus is that the sensory connections for feeling pain are present at 20 weeks gestation. [Note 2] In fact, there is a steadily increasing body of medical evidence and literature supporting the conclusion that a fetus may feel pain from around 11 to 13 weeks, or even as early as 5.5 weeks.  [Note 3] Indeed, there is some evidence that fetal suffering may actually be more intense due to the uneven maturation of fetal neurophysiology.  [Note 4] A British survey of neuroscientists showed that 80% of the neuroscientists participating in the survey felt that pain relief should be given to a fetus for abortions after 11 weeks gestation.  [Note 5]

In light of such medical evidence on the ability of a fetus to experience pain, it is disturbing that only five states have laws requiring abortion providers to give women information on fetal pain. Arkansas, Oklahoma, Minnesota, and Louisiana require physicians to inform women of the possibility of fetal pain at 20 weeks’ gestation. Georgia requires abortion providers to inform women orally prior to an abortion that fetal pain information is available on a state-sponsored website.   [Note 6]

A woman seeking an abortion has a right to know about the medical fact that a fetus can feel pain at 20 weeks gestation, and possibly even at 11-13 weeks gestation. In order to facilitate truly informed consent for abortions, abortion providers and the state have a responsibility to ensure that women receive information on fetal neurological development and its ability to feel pain.  [Note 7]

States that have not adopted fetal pain legislation should consider doing so. Such legislation should include two basic requirements: (1) that the abortion provider give the pregnancy woman information that unborn children at 20 weeks’ gestation and beyond are fully capable of feeling pain; and (2) that the abortion provider give the pregnant woman the option to administer anesthesia to alleviate or eliminate pain to the fetus. Exceptions to these requirements shall be limited to medical emergencies, a risk to the life or substantial bodily harm to the woman, and if administration of pain relief to the fetus would significantly decrease the possibility of sustained survival of the fetus independent of the mother, with or without artificial support. An ideal fetal pain awareness and prevention law should also contain a requirement that the abortion provider obtain a written certification, signed by the woman, that (1) information on fetal development and fetal pain have been provided to the woman; (2) the woman has been given the choice to have an anesthesia or analgesic administered to the fetus; and (3) the woman has either requested administration of pain-relieving medication, or has opted not to receive administration of pain-relieving medication for the fetus.  [Note 8]

Currently, only two states (Virginia and California) are considering fetal pain bills.  [Note 9] In 2007, at least 9 states considered legislation requiring abortionists to provide women with information on fetal pain.  [Note 10]

Laws informing women regarding fetal pain and fetal development are constitutional under the standards set forth by the United States Supreme Court in Planned Parenthood v. Casey [Note 11] and Gonzales v. Carhart.  [Note 12] In Casey, the USSC upheld a Pennsylvania statute requiring an abortion provider to inform the woman seeking an abortion on the availability of state-prepared materials on fetal development and abortion alternatives. The Court held that it is constitutional for a state to require that abortion providers offer prepared materials on fetal development, in furtherance of the state’s legitimate interests in protecting developing fetal life and the well-being of the woman.  [Note 13]

The USSC reaffirmed this conclusion when it restored Casey’s “undue burden” or “substantial obstacle” standard in Gonzales. The Court’s application of the Casey standard in Gonzales “suggests that broader regulations of abortion that make medical sense will be upheld, especially if they are designed to provide women with more information about the nature, risks, and alternatives to abortion.”  [Note 14] Fetal pain laws clearly fall within the category of abortion regulations on fetal development allowed under Casey and Gonzales.

The best way for states to pass laws on fetal pain awareness and prevention is by amending their existing informed consent statutes for abortion to require abortion providers to give women information on fetal pain, along with the option to request pain relief for the fetus during the abortion procedure. Arkansas and Oklahoma took this approach in their adoptions of fetal pain legislation.

Medical information on the fetal neurological development and a fetus’ consequent ability to feel pain is a concern of women considering abortion,   [Note 15]and providing this information is necessary for a woman to make a fully-informed choice on whether or not to obtain an abortion. Women have the right to all available medical information regarding fetal development, and a right to know the consequences of their abortion decision – specifically, that abortion may cause fetal pain.  [Note 16] In conclusion, to protect women’s rights, facilitate informed consent, and to further state interests in the well-being of women and developing human life, legislators should work to introduce and enact legislation on fetal pain awareness and prevention.

This article was originally published by the Culture of Life Foundation, available at http://www.culture-of-life.org/content/view/127/1/

NOTE 1. See, e.g. Corke B., Seals J. ANESTHETIC & OBSTETRIC MANAGEMENT OF HIGH RISK PREGNANCY, ed. Datta S. (Harvard Medical School: Boston, 1996).
NOTE 2. Report of the Medical Research Council Group on Fetal Pain, at 3.3. Available at http://www.mrc.ac.uk/Utilities/Documentrecord/index.htm?d=MRC002413) (last accessed March 20, 2008).
NOTE 3. Commission of Inquiry into Fetal Sentience. Human sentience before birth. Rawlinson report. London: HMSO, 1996. See also T.S. Collett, Fetal Pain Legislation: Is It Viable? 30 Pepp. L. Rev. 161 (2003), at 169.
NOTE 4. Frank White, M.D. Are We Overlooking Fetal Pain and Suffering in Abortion? American Society of Anesthesiologists Newsletter, Volume 65, October 2001. Available at http://www.asahq.org/Newsletters/2001/10_01/white.htm (last accessed March 20, 2008).
NOTE 5. Id.
NOTE 6. Denise M. Burke, Fetal Pain Awareness and Prevention, Model Legislation & Policy Guide for the 2008 Legislative Year, in Defending Life 2008: Proven Strategies for a Pro-Life America, available at http://aul.org/?p=Defending_Life#Abortion (last accessed March 20, 2008).
NOTE 7. Id. See also, Frank White, supra at note 4 (“We have a responsibility to give proper informed consent on these issues.”).
NOTE 8. Id.
NOTE 9. VA H.B. 1556; CA A.B. 1009.
NOTE 10. Supra at note 6. (In 2007, California, Kentucky, Louisiana, Missouri, New York, Oklahoma, Oregon, South Carolina, and Virginia considered legislation requiring abortionists to provide women with information on fetal pain.)
NOTE 11. 505 U.S. 833 (1992).
NOTE 12. 127 S.Ct. 1610 (2007).
NOTE 13. Casey at 880, 882-883.
NOTE 14. Clarke D. Forsythe, Gonzales v. Carhart: The potential impact of the United States Supreme Court’s 2007 decision. Available at http://aul.org/Gonzales_v_Carhart (last accessed March 20, 2008).
NOTE 15. T.S. Collett, Fetal Pain Legislation: Is It Viable? 30 Pepp. L. Rev. 161 (2003), at 102.
NOTE 16. Id. at 184.