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    • E. Christian Brugger, D.Phil. – E. Christian Brugger is a Senior Fellow of Ethics and Director of the Fellows Program at the Culture of Life Foundation in Washington, D.C. and the J. Francis Cardinal Stafford Professor of Moral Theology at St. John Vianney Theological Seminary in Denver, Colorado. He has Master degrees in moral theology and moral philosophy from Seton Hall, Harvard and Oxford Universities and received his D.Phil. (Ph.D.) in Christian ethics from Oxford in 2000.  Christian has published over 200 articles in scholarly and popular periodicals on topics in bioethics, sexual ethics, natural law theory, as well as the interdisciplinary field of psychology and Christian anthropology.  He lives on a farm in Evergreen, Colorado, with his wife Melissa and five children.
    • Helen Alvaré, J.D. – Helen Alvaré, J.D. is Honorary Fellow in Law at the Culture of Life Foundation.   Helen is an Associate Professor of Law at the George Mason University School of Law in Arlington, Virginia where she teaches and publishes in the areas of property law, family law, and Catholic social thought. Professor Alvaré serves as Consultor for the Pontifical Council for the Laity, Senior Fellow at the Witherspoon Institute where she chairs the Conscience Protection Task Force, is President of the Chiaroscuro Foundation and most recently Editor and Co-Author of Breaking Through: Catholic Women Speak for Themselves.From 2000 to Spring 2008, Professor Alvare taught at the Catholic University Columbus School of Law. Professor Alvare also lectures widely in the United States and Europe on matters concerning marriage, family and respect for human life. She is a consultant to ABC News and to the United States Conference of Catholic Bishops’ (USCCB) Marriage and Pro-Life Committees. In 2008, Pope Benedict XVI named Professor Alvare a Consultor to the Pontifical Council for the Laity.From 1987-2000, Professor Alvare was an attorney with the USCCB’s General Counsel Office and director of information and planning for the Secretariat for Pro-Life Activities. In these positions, she testified before the…
    • Jennifer Kimball Watson, Be.L. – Jennifer Kimball Watson joined Culture of Life Foundation as Executive Director in November of 2007. She is an Adjunct Professor of Bioethics at the Ave Maria School of Law in Naples, F.L.. Previous to her work with the Culture of Life Foundation Jennifer was a Wilbur Fellow of the Russell Kirk Center for Cultural Renewal located in Michigan. Jennifer earned a Licentiate in Bioethics from the Pontifical Athenaeum Regina Apostolorum School of Bioethics in Rome.  Her prior undergraduate studies were in International Administration and Government Policy at the Evergreen State College in Washington State.Jennifer’s areas of specialization include Eugenics in Artificial Reproductive Technologies, Heterologous Adoption and Transfer of Embryos, The Womb in Reproductive Technologies, and the Role and Significance of The Medical Act. She interviews with National Conservative and Christian Radio Syndicates as well as several foreign and secular reporters. Jennifer has spoken on the dignity of women and women’s social issues to various audiences since 1999 and has spent several years in advocacy work with various international organizations in the field of life sciences. From 2000 to 2006 she recruited and coordinated grass-roots social policy efforts that consisted of a public and private sector network of professionals and academics…
    • Margaret Datiles Watts, J.D. – Margaret Datiles Watts, J.D., is Culture of Life Foundation’s Associate Fellow in Law. Maggie is member of Washington, D.C. and Maryland bar associations.  She holds a B.A. in Philosophy (Phi Beta Kappa and Magna Cum Laude) and a Certificate in Classical Philosophy from the University Honors Program at The Catholic University of America. She earned a Juris Doctorate from Columbus School of Law at The Catholic University of America, where she served as a Research Fellow at CUA Law’s Marriage Law Project. She also studied Roman Law and EU Law at Magdalene College, University of Oxford, England.A former Fellow and Staff Counsel for Americans United for Life, Datiles co-authored an amicus curiae brief to the Supreme Court of the United States in the landmark partial birth abortion case, Gonzales v. Planned Parenthood, et al., companion case to Gonzales v. Carhart (2007). She also advised legislators, policy groups and the media (radio and newspapers) on abortion and bioethics laws and drafted pro-life model legislation.Her areas of research and/or publication include legal issues surrounding abortion, government funding restrictions for abortion, contraception, healthcare rights of conscience, stem cell research, artificial reproductive technology, population decline, physician-assisted suicide, euthanasia, and same-sex marriage.She currently publishes articles…
    • William E. May – William E. May is Senior Research Fellow of the Culture of Life Foundation and emeritus Michael J. McGivney Professor of Moral Theology at the John Paul II Institute for Studies on Marriage and Family at The Catholic University of America in Washington, D.C., where he taught the academic years from 1991 through 2008 after teaching for 20 years at The Catholic University of America. He is the author of more than a dozen books. The 2nd edition of his Catholic Bioethics and the Gift of Human Life was published by Our Sunday Visitor (2008), and a substantively revised 3rd edition is scheduled for publication in 2013. In 2003 Our Sunday Visitor published a revised and expanded edition of his Introduction to Moral Theology. Among his other books are: Marriage: The Rock on Which the Family Is Built (San Francisco: Ignatius, 1995; 2nd revised edition, 2009)); and, with Ronald Lawler OFM Cap and Joseph Boyle, Catholic Sexual Ethics (rev. and enlarged ed. Huntington, IN: Our Sunday Visitor, 1998; 2nd rev. edition, 1998; a 3rd edition, substantively revised by May alone, was published in 2011); Theology of the Body: Genesis and Growth (Boston: Pauline Books & Media, 2010) He has published more…
    • Frank J. Moncher, Ph.D. – Dr. Frank Moncher received his Ph.D. in Clinical-Community Psychology from the University of South Carolina in 1992, following which he spent several years on faculty of the Medical College of Georgia, with a focus on Adolescent Intensive Services. In 2000 he moved to the Washington, DC area to teach at a graduate school of psychology which had a mission of integrating the science of psychology in the context of the Catholic Christian view of the human person. Concurrent with this, over the past 12 years he has consulted with 11 different religious orders and 4 dioceses to provide psychological evaluations of aspirants and candidates, as well as consulting with different diocesan marriage tribunals.His research interests include the integration of Catholic thought into psychotherapy, child and family development issues, and integrated models of assessment of candidates for the priesthood and religious life. Frank is published in Families in Society: The Journal of Contemporary Human Services, Adolescence, Journal of Interpersonal Violence, Edification, and the Journal of Psychology and Christianity, as well as contributing to several book chapters on children, families, and religious issues.Since 2010, Dr. Moncher has worked for the Diocese of Arlington and Catholic Charities as a psychologist and consultant.  His…
    • Steve Soukup – Fellow in Culture and Economy Steve Soukup is the Vice President and Publisher of The Political Forum, an “independent research provider” that delivers research and consulting services to the institutional investment community, with an emphasis on economic, social, political, and geopolitical events that are likely to have an impact on the financial markets in the United States and abroad. Mr. Soukup has followed politics and federal regulatory policy for the financial community since coming to Washington in 1996, when he joined Mark Melcher at the award-winning Washington-research office of Prudential Securities. While at Prudential, he was part of the Washington team that placed first in Institutional Investor magazine’s annual analyst survey for eight years in a row. Mr. Soukup left Prudential with Mr. Melcher to join Lehman Brothers in the fall of 2000 and stayed there for two years, before leaving early in 2003 to become a partner at The Political Forum. While at Lehman, Mr. Soukup authored macro-political commentary and followed policy developments in the Natural Resources sector group, focusing on agriculture and energy policy. He also headed Lehman’s industry-leading analysis of asbestos litigation reform efforts. At The Political Forum, Mr. Soukup was initially the editor and junior partner,…
    • Dr. Pilar Calva, M.D. – Dr. Calva is a medical doctor specializing in Human Genetics with a Cytogenetics subspecialty from The University of Paris, France. In Paris, she was the under-study to the world-renowned Professor Jerome Lejeune, who is considered by some to be the father of modern genetics. In 1958, Lejeune discovered that an extra 21st chromosome is responsible for Down syndrome, or Trisomy 21. Lejeune dedicated his life tirelessly and unfailingly to defend the unborn, especially those with Down syndrome, testifying before scientific conferences and lawmakers. He was appointed by Pope John Paul II as the first President of the Pontifical Academy for Life. In Dr. Calva’s own words: When I arrived in France, I lived a life divided between faith and reason. I thought that from Monday to Saturday, I put on my white coat for my scientific tasks, and Sunday was the day I took off the white coat, put on my crucifix and dedicated myself to my religious duties. Professor Lejeune truly converted me, making me see that one can wear the white coat and the cross, at the same time. That is, one can fly with the wing of faith and the wing of reason. Inspired by the life…
    • Elyse M. Smith – Elyse M. Smith is an associate attorney with a northern Virginia law firm working in nonprofit and church law, estate planning, and civil litigation. Ms. Smith graduated magna cum laude from Ave Maria School of Law in Naples, Florida, where she served on Law Review and was published in the Ave Maria International Law Journal. She was named “Most Dedicated Editor” for her work on Law Review. Ms. Smith earned her bachelor’s degree in Foreign Affairs from the University of Virginia.  
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  >  Issue Briefs  >  Life  >  Fetal Pain Legislation: Women Deserve to Know

Fetal Pain Legislation: Women Deserve to Know

Posted: March 20, 2008
By: Margaret Datiles Watts, J.D.
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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.

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