This document discusses pain, fetal development, and laws relating to abortion. It summarizes that the medical consensus is that fetuses are unlikely to feel pain before 27 weeks due to brain development. While laws limiting abortion after 20 weeks cite fetal pain, they affect a small percentage of procedures and have a larger symbolic impact by promoting ideas of fetal personhood. The document argues these laws are primarily about political values rather than established science on fetal pain.

1. Pain, Abortion, and the
Legal Status of the Fetus
Amanda C. Pustilnik
Center for Law, Brain & Behavior @MGH
Professor of Law
University of Maryland School of Law

2. What is pain?
Can fetuses feel pain?
What is the state of the law on fetal
pain and abortion?

3. I. What Is Pain?
Pain: “An unpleasant sensory and emotional
experience associated with actual or
potential tissue damage, or described in
terms of such damage. … Pain is always
subjective.”
- IASP standard definition of pain
Pain is distinct from nociception
Pain requires perception
Pain requires at least minimal consciousness
Source: http://www.iasp-
pain.org/Education/Content.aspx?ItemNumber=1698&&navItemNumber=576#Pain

4. I. What Is Pain?
Source: Susan J. Lee & Henry J. Peter Ralston, et al., Fetal Pain: A Systematic
Multidisciplinary Review of the Evidence, 294 JAMA 947 (2005)

5. II. Can Fetuses Feel Pain?
Medical consensus:
 Fetuses likely cannot feel pain, at least until
after about week 27 of gestation
Why?
1. Brain structure development
2. Brain structure connection
3. Signal interpretation (Perception)

6. II. Can Fetuses Feel Pain?
Fetal brain development
Insular and thalamic input to frontal cortex
necessary to feel pain
First thalamocortical projections present
around week 24
First evidence of cortical activity relating to
sleep-wake cycles at week 30
Sources: Royal Coll. of Obstetricians & Gynaecologists, Fetal Awareness: Review of
Research and Recommendations for Practice 9, 23 (2010), available at
http://www.rcog.org.uk/files/rcog-corp/RCOGFetalAwarenessWPR0610.pdf [RCOG
Report] ; Susan J. Lee & Henry J. Peter Ralston, et al., Fetal Pain: A Systematic
Multidisciplinary Review of the Evidence, 294 JAMA 947 (2005)

7. II. Can Fetuses Feel Pain?
Medical consensus:
 Prior to thalamocortical connections, response
to aversive stimuli is equivalent to reflex –
perception of pain not required
 Fetal perception of pain remains inferential
 Consensus is that fetus has neurological
structures minimally necessary for pain to
occur (vs. nociception) after 27w
 But, no ability to determine whether fetus
actually feels pain, even after that point
Sources: Susan J. Lee & Henry J. Peter Ralston, et al., Fetal Pain: A Systematic
Multidisciplinary Review of the Evidence, 294 JAMA 947 (2005)

8. II. Can Fetuses Feel Pain?
Fetal brain development
 Chemical and hormonal environment of the
womb believed to keep fetus in sleep-like or
unconscious state
 Accounts for likely differences between fetus
and premature infant of equal gestational
age
Sources: Royal Coll. of Obstetricians & Gynaecologists, Fetal Awareness: Review of
Research and Recommendations for Practice 9, 23 (2010), available at
http://www.rcog.org.uk/files/rcog-corp/RCOGFetalAwarenessWPR0610.pdf [RCOG
Report] ; Susan J. Lee & Henry J. Peter Ralston, et al., Fetal Pain: A Systematic
Multidisciplinary Review of the Evidence, 294 JAMA 947 (2005)

9. Why Talk About Pain?
 Discourse about pain in law is about two things:
 Physical facts
 Values about whose suffering counts

10. III. Lawmaking Relating to Fetal Pain
Fetal pain became a rallying point against
abortion starting in 1984
“Silent Scream” (1984) – edited ultrasound stills
spliced into a moving image appearing to
show fetus screaming during abortion
procedure
Then-president Ronald Regan spoke about
fetuses enduring extreme pain during
abortion procedure
Sources: The Silent Scream (American Portrait Films 1984), available at
http://www.silentscream.org; Francis X. Clines, Reagan Appeal on Abortion is
Made to Fundamentalists, N.Y. TIMES, Jan. 31, 1984, at A16

11. III. Lawmaking Relating to Fetal Pain
Three new kinds of laws relating to fetal pain
during abortion procedure:
Prohibit abortion at 20 weeks OR
Require fetal anesthesia OR
Require provider to inform patient that
“unborn child” will suffer pain “while being
killed”

12. III. Lawmaking Relating to Fetal Pain
Justification for the laws:
 State needs to assert a “compelling state
interest”
 Law may not be result of “improper purpose”
 May not impose “undue” burden on woman
seeking abortion
Supreme Court said that states may draw the
line for abortion procedures at viability (Roe v.
Wade)
But states are not required to do so

13. III. Lawmaking Re to Fetal Pain: States
States passing legislation limiting abortion
after 20 weeks post-fertilization, based on fetal
pain
1. Alabama 12. West Virginia
2. [Arizona]
3. Arkansas
4. [Idaho]
5. Indiana
6. Louisiana
7. Mississippi
8. Nebraska
9. North Dakota
10.Oklahoma
11.TexasSource:Guttmacher Institute

14. III. Lawmaking Relating to Fetal Pain
 9th Circuit Invalidates 20-Week Abortion Ban:
 Isaacson v. Horne, 716 F.3d 121 (9th Cir. 2013)
 Supreme Court denied cert. (Jan. 2014)
 2015: West Virginia Legislature passes almost identical
legislation, overriding governor’s veto
Source:Guttmacher Institute

15. III. Federal Lawmaking Re to Fetal Pain
What the Proposed Federal Legislation Says –
“There is substantial evidence that the
process of being killed in an abortion will
cause the unborn child pain, even though
you [may] receive a pain-reducing drug or
drugs.
Under [this Act], you have a right to know
that there is evidence that the process of
being killed in an abortion will cause your
unborn child pain.”

16. III. Lawmaking Relating to Fetal Pain
What the Proposed Federal Law Says –
“substantial evidence … there is
evidence”
“being killed in an abortion will cause the
unborn child pain … the process of being
killed in an abortion will cause your unborn
child pain.”
“even though you receive a pain-
reducing drug or drugs.”
Evidence … Child … Killed … Selfish …

17. III. Impact of Laws Relating to Fetal Pain
Impact of these laws
A. Limit small but significant category of
procedures
B. Symbolic and normative impact

18. III. Lawmaking Relating to Fetal Pain
A. Affects small but significant category of procedures
 ~1.5% of abortions carried out after 20w (Guttmacher
Institute)
 Stage when certain fetal abnormalities evident on
ultrasound or through other testing
 Often are abortions of “wanted” pregnancies (i.e., a
wanted pregnancy is terminated due to discovery of
severe fetal abnormality)
 Can create barriers to performing procedure
 Requires additional skills and facilities on part of provider
 Risk of liability for providers
 Provider who is not equipped to provide fetal anesthesia can
be liable under the law

19. III. Lawmaking Relating to Fetal Pain
B. Symbolic and normative impact
Symbolic lawmaking activity in state
 Several states with fetal pain-based bans
do not have providers who perform
abortions post 20w (PI)
 Literally affects no abortions in the state
Symbolic impact on patients & providers
Increasing acceptance of ideas of:
 Fetus as person
 Providers and patients as killers

20. III. Lawmaking Relating to Fetal Pain
Symbolic and normative impact:
“Ten years ago, patients never asked about this
[fetal pain during abortion]. Now we have
questions from some very distraught people —
It's a very emotional subject, and most people
aren't experts on pain physiology.”
- Dr. Anne Davis, Physicians for Reproductive Health,
Columbia University
Source: NPR, High Court's Pass On 'Fetal Pain' Abortion Case Unlikely To Cool
Debate, January 13, 2014. available at:
http://www.npr.org/blogs/itsallpolitics/2014/01/13/262178284/high-court-wont-
hear-fetal-pain-abortion-case-as-debate-rages

21. “The question is not ‘Can they reason,’
nor ‘Can they talk,’ but ‘Can they
suffer?’”
- Jeremy Bentham
JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND
LEGISLATION 311 (Dover Publ’ns 2007) (1789)
III. Lawmaking Relating to Fetal Pain

22.  NO state or federal law requires fetal anesthesia for
fetal surgery.
 Death penalty: SCOTUS holds execution need not
be painless
 Some pain during execution comports with 8th
Amendment limits
 Some pain may be inflicted incident to arrest and
during incarceration
 Animal rights?
 History of denial of pain relief in parturition
III. Lawmaking Relating to Fetal Pain