As it so often does in America, the drive to restrict abortion produces bad legislation. The Unborn Child Pain Awareness Act is no exception.
This fall the Wisconsin state Senate passed the Unborn Child Pain Awareness Act. The bill has passed the key committee in the Wisconsin House and it seems likely to pass there before the end of the year.
Wisconsin is not alone. The states of Arkansas and Minnesota have passed versions of this law. And Congress is taking a hard look at the same legislation as well. The House of Representatives recently completed a committee hearing on the law.
The proposed law requires doctors to read a script to women who are considering having abortions telling them that Congress has determined that an unborn child feels pain by 20 weeks of age. The express purpose of the bill is to diminish the suffering that a fetus must endure as part of a post-20-week abortion. But the real purpose of the bill is to discourage woman from choosing an abortion by stressing that a 20-week-old fetus feels pain.
The script that doctors are supposed to read tells every woman that Congress has determined that “…at least 20 weeks after fertilization, every unborn child has the physical structures necessary to experience pain.” The woman would also have to be told that there is substantial evidence that the abortion methods most commonly used 20 weeks after fertilization cause substantial pain to an unborn child.
Beyond medical science
Those in the House who favor the bill, and there are many, want to be sure that women considering an abortion have the option of choosing to have anesthesia or other pain-reducing drugs administered directly to the “pain-capable unborn child.” The purpose of administering such drug or drugs would be to reduce or eliminate the capacity of the unborn child to experience pain during the abortion procedure.
The law warns that, “in some cases, there may be some additional risk to you associated with administering such a drug.”
Why is this such bad legislation? There are a lot of reasons. None of them are getting much attention because of abortion politics.
The bill insists on calling a fetus an unborn child, something medicine would never do. The bill goes far beyond what medical science believes to be true about when a fetus feels pain. The bill treats every fetus as the same in terms of capabilities if they reach 20 weeks of age or more, which they are not. And, most troubling, it reduces the process of informed consent to the reading of a fixed script created and mandated by politicians not doctors.
If, as this bill purports, Congress is concerned about what medicine believes to be true about the capacity to feel pain by a human fetus then why does it consistently refer to a fetus as an unborn child — a phrase never used in any medical textbook or medical school lecture?
The answer is simple — abortion politics.
Do doctors agree that fetuses have the ability to feel pain at 20 weeks in utero? Some doctors do. But some do not. A quick search of the medical literature reveals no consensus at all among physicians and scientists about when a fetus can feel pain. Estimates range from 16 weeks to 28 weeks. How is it then that Congress can legislate a 20-week line in the sand as the date when a fetus can feel pain despite a lack of consensus on the part of actual doctors and scientists?
The answer is simple — abortion politics.
Oversimplified disclosure
The proposed law says that doctors can administer anesthesia or pain relieving drugs to the "pain-capable unborn child." It also says this sort of treatment may result in “some additional risk to you,” meaning the mother.
How does Congress or a state legislator know whether doctors can truly relieve pain by in utero anesthesia? And how can an obviously inadequate disclosure of risk to a mother considering an abortion — "some additional risk to you" — pass legislative muster.
The answer is simple — abortion politics.
And how is it possible that Congress or a state legislature could decide that a one-size-fits-all script constitutes an acceptable way to achieve informed consent when they would never accept such oversimplified, rhetoric-laden boilerplate as adequate from their own doctors?
The answer is simple — abortion politics.
Abortion politics continues to rip at the social fabric of America. That is a fact. When abortion politics are permitted to twist, obscure and ignore the facts about fetal development, fetal pain and the nature of informed consent in medicine, that is a fact that both those who support abortion rights and those who don't should not tolerate.
Arthur Caplan is director of the Center for Bioethics at the University of Pennsylvania.