This summer, Judy Nicastro wrote in the New York Times that in her 20th week of pregnancy she learned that her son would have a hole in his diaphragm, only one formed lung, and would rely on oxygen for much of his early life. She confessed that she was grateful that he “died in a warm and loving place” when the doctor aborted him at 24 weeks.
Roughly one in three women will ever have an abortion, and just 1.5 percent of all terminations occur after 20 weeks. But certain types of fetal tests can only be performed at or just before 20 weeks, and that is the time when pregnant women find out about brain malformations, missing limbs, and other severe birth defects.
Tomorrow, Albuquerque could become the first city in the country to ban abortions after 20 weeks of pregnancy, using medical justifications about fetal pain that have successfully propelled similar bans through the legislatures of 12 states. Some see the measure as the start of a city-by-city battle by pro-life groups to ban abortions such as Nicastro’s, even in states with liberal legislatures.
The National Right to Life Committee, one of the main organizations pushing the 20-week bans, has said the group wants to prevent abortions after a point when a “member of the human family has reached a point where they are capable of feeling pain.”
However, this specific turning point—fetal pain at 20 weeks—has very little consensus among modern doctors: Dozens of studies have yielded pain estimates ranging from 16 to 30 weeks, and the American Congress of Obstetricians and Gynecologists has said it’s unlikely pain is felt before 29 weeks.
On the basis of this uncertain science rests one of the most comprehensive rollbacks of abortion rights in decades. It’s also a sign of the major gains the pro-life movement has made by emphasizing the agony that fetuses might feel, rather than what the movement sees as their God-given right to be born.
Today’s fetal pain legislation represents somewhat of a schism in the pro-life community.
In a number of court cases, beginning with Roe v. Wade in 1973, the Supreme Court ruled that states may not prohibit abortions necessary to preserve the life or health of the mother, regardless of the age of the fetus, with “health” encompassing both mental and physical health. And for no reason can states ban abortion before viability, the time, determined on a case-by-case basis, when the fetus can survive outside the womb. The medical consensus is that viability occurs at between 24 weeks and 26 weeks.
In the early 1980s, American Evangelical Christians began to coalesce around the idea that life begins at conception, but the pro-life movement’s early attempts at a constitutional amendment banning all abortion were unsuccessful.
Pro-lifers were then faced with a choice: Should they keep trying to outlaw all abortions, or simply push to make the procedure increasingly rare through piecemeal laws at the state level?
“Are you gonna go for these very broad kinds of restrictions on abortion at the federal level,” said Glen Halva-Neubauer, a political scientist at Furman University who specializes in the abortion debate. “Or were you going to attempt to take these sort of regulatory approaches?”
The more pragmatic set found early on that abstract arguments about the sanctity of life didn’t resonate as well with lay Evangelicals as did vivid descriptions of the abortion process. The 1984 video The Silent Scream, produced by the NRLC, purported to show a sonogram of a first-trimester abortion in which the fetus opened its mouth in what the narrator said was a wounded cry.
“The Silent Scream tried to elicit a sense of disgust at the prospect of the fetus being in pain during the procedure,” said Jonathan Dudley, a medical resident at Johns Hopkins who studied the anti-abortion movement at Yale Divinity School. “The idea that pain would give fetuses value is closer to a liberal worldview. They see it as more of a middle-ground position.”
From there, anti-abortion messaging focused heavily dismembered fetuses, the bloody abortion process, or the idea of fetuses being tortured to death.
“It's part of the idea that God has given us a sense of right and wrong,” Dudley said, “And that if something elicits disgust and contempt, it appeals to our inner moral compass.”
Some in the pro-life community have resisted simply trying to restrict when and how abortions can be performed, believing that such half-measures acknowledge that some abortions are legitimate.
In 2011, for example, a group of die-hard pro-life groups in Ohio pushed for a “heartbeat bill,” which would have banned abortions in the state after a fetal heartbeat is detected, which usually occurs at about six to eight weeks. But the state's main anti-abortion organization, Ohio Right to Life, refused to back it because they felt it was too radical—and therefore risky—for the political climate at the time.
Still, the effectiveness of this step-by-step strategy has become clear in recent years.
Last week, Republican Senator Lindsey Graham of South Carolina introduced the Pain Capable Unborn Child Protection Act, which would ban abortions after 20 weeks. Pro-life advocates also set their sights on state and, in the case of Albuquerque, municipal legislatures with laws that aim to elicit the same revulsion that laws banning so-called “partial-birth” abortion relied on. Rather than employ philosophical arguments about the true start of human life, anti-abortion groups are instead leaning on more visceral messages about pain and suffering.
“The life at conception issue gets to a spiritual question that's unknowable and unanswerable to a lot of people,” said Alesha Doan, chair of the women, gender, and sexuality studies department at the University of Kansas. But the fetal pain argument touches on the fact that, “we anesthetize for all surgeries, and it's considered cruel and unusual punishment not to do so.”
Currently, nine states ban abortions at 20 weeks after fertilization, or 22 weeks after the woman’s last menstrual period. Nebraska was the first to do so, in 2010. Though total abortion bans are losing ground, even in conservative states like Mississippi, the 20-week bans are “really good politics” for the pro-life movement, Halva-Neubauer said, because it makes their argument appear stronger and “takes a lot of late-second-trimester abortion providers out of the game.”
Ultimately, Halva-Neubauer believes pro-life groups hope to force the 20-week issue to the courts, and then on to the Supreme Court, where in 2007 a similar ban on “partial-birth” abortions, the pro-life term for intact dilation and extraction (IDX), was upheld.
Like the fetal pain issue, the debate over IDX also centered on the gruesomeness of the procedure, with pro-life materials detailing a fully-formed baby being dragged out of a womb and then stabbed with long scissors.
“This shows how an idea (fetal pain) that had currency in one debate can be repackaged or reused in another debate (the current one over restrictions on later abortions),” Halva-Neubauer said in an email. “The gravitas the idea gained in the partial birth debate has made it more powerful in the current policy skirmish.”
The IDX ban will only impact a small minority of women seeking abortions: The procedure accounts for about .2 percent of all abortions performed annually. But in her dissent at the time, Justice Ruth Bader Ginsburg said the decision "cannot be understood as anything other than an effort to chip away at a right declared again and again by this court--and with increasing comprehension of its centrality to women's lives."
Academics who study the anti-abortion movement say this type of “chipping away” is the goal of the 20-week bans and other recent restrictions, such as the requirements for abortion providers to have admitting privileges at nearby hospitals, a virtual impossibility for large, sparsely populated expanses of the southern and western United States.
“One of the reasons the pro-life movement has been so successful is that in its political branch, the idea is to make abortion as restrictive as possible and incrementally chip away at it,” Doan said. “Because one incremental policy doesn't seem like a big deal.”
In a 1996 interview with The New Republic, the NRLC lobbyist Douglas Johnson hinted that the goal was just this sort of gradual wearing away of abortion rights, explaining that the term “partial-birth abortion” (as opposed to its clinical term) was dreamed up with the hope that "as the public learns what a 'partial-birth abortion' is, they might also learn something about other abortion methods, and that this would foster a growing opposition to abortion."
It was, in fact, during a 2004 federal trial on IDX that government witness Kanwaljeet Anand, now a professor of pediatrics, anesthesiology, and neurobiology at the University of Tennessee at Memphis, brought up some of the most frequently cited medical support for the 20-week cut-off when it comes to fetal pain.
"It is my opinion that the human fetus possesses the ability to experience pain from 20 weeks of gestation, if not earlier, and the pain perceived by a fetus is possibly more intense than that perceived by term newborns or older children,” Anand said in his testimony. “Anesthetic agents that are routinely administered to the mother during this procedure would be insufficient to ensure that the fetus does not feel pain."
Anand has since turned down offers to testify in abortion hearings. Recently, he also said that a common method for performing abortions after 20 weeks, which involves injecting fetuses with heart-stopping medication, “would be fine, really, from a point of view of fetal pain ... a compassionate way to do it.”
Despite his hesitancy, Anand’s work has been repeatedly cited by pro-life groups agitating for the 20-week ban. These groups point to poll results indicating that most Americans think abortions should not be “permitted beyond the point at which there’s substantial evidence that the unborn can feel pain.”
The problem is, there is no such point.
Scientifically, the actual time at which a fetus feels pain, and whether that’s even possible to measure, is a hotly contested matter, as Slate’s William Saletan has shown in multiple articles on the controversy.
Many studies place the actual time several weeks earlier. For example, one 2008 paper found “Spinothalamic fibers (responsible for transmission of pain) develop between 16 and 20 weeks gestation.”
Meanwhile, many other doctors point to a later time, at around 24 to 29 weeks.
A 2005 article in the Journal of the American Medical Association argued that feeling “pain” would require a fetus to be conscious of being hurt. For that to happen, two parts of its brain, the thalamus and the cerebral cortex, would have to have already fused, which the JAMA authors write only occurs at 29 to 30 weeks.
Several of the other study authors pro-life groups commonly cite in fetal pain advocacy material have disavowed the connection between their research and the 20-week idea. Some reportedly had no idea they were being cited by the anti-abortion movement. The National Right to Life Committee did not respond to an e-mailed request for comment sent several days ago.
For pro-life groups, the logic seems to go something like this: We wouldn’t perform an operation on a late-term fetus or a newborn without an anesthetic, so if we can’t be sure that fetuses don’t feel pain in the abortion process, to risk hurting it—even for a few brief seconds before its death—would be an unspeakable crime.
In a pamphlet on fetal pain, the pro-life Family Research Council quotes Vivette Glover, a perinatal psychobiologist:
“I am a bit concerned that if we just say we don’t know, we may be causing quite a lot of suffering. I would rather err on the safe side and say, ‘Well the fetus may be suffering and so we ought to do something about it.’”
The “something” pro-life groups believe women should do, apparently, is not get an abortion at all.