Monday, June 17, 2013

The merits of fetal pain legislation

The Pain-Capable Unborn Child Protection Act, which bans medically unnecessary abortions after 20 weeks, is expected to come to a vote this week in the House of Representatives. Several states have enacted similar bans (some of which are tied up in legal challenges), but this one would apply nationwide.

The legislation has prompted a broader discussion within the pro-life movement about the wisdom of the "pain-based" approach. Without naming names, I have noticed that some pro-life leaders are skeptical. I ultimately come down in favor of 20-week bans, but the concerns are legitimate and thoughtful. Below, I outline what I perceive the major concerns to be, and my responses.

1. It shouldn't be about pain.
Pro-life advocates naturally do not believe that only babies who feel pain should be protected from abortion. But some have expressed concern that this legislation sends the wrong message. By focusing on the ability to feel pain, they say, we do a disservice to younger babies. We do not want to give the impression that it is morally acceptable to kill as long as the victim doesn't feel it.

History may be a guide here. Similar concerns were expressed about the partial-birth abortion ban; after all, we don't think that abortion is acceptable when the baby's entire body is in the womb, either. But the PBA ban got people to think about the brutal nature of abortion in general, and changed a lot of hearts and minds. The PBA ban admittedly didn't prevent many abortions, and neither will a 20-week ban, since most abortions occur earlier. The real value is educational value.

Rep. Franks referred to the Gosnell trial, which prompted the legislation, as a "teachable moment." The legislation itself is likewise a teachable moment.

2. 20 weeks isn't the right cutoff.
There is a lot of debate about when babies begin to feel pain. The 20-week mark is based on a wealth of scientific studies, which can be found here.

Of course, abortion advocates have their own experts, who put the ability to feel pain later. It's worth noting that they disagree substantially with one another. The American College of Obstetricians and Gynecologists, which is openly pro-choice and includes abortionists in its membership, says that fetal pain is "unlikely before the third trimester," or 28 weeks. The British Royal College of Obstetricians and Gynecologists, by contrast, points to 24 weeks as the key. And many abortion advocates like to cite a single 2011 study which put the ability to feel pain at a whopping 35 weeks, suggesting that even many premature infants are numb to pain. At the end of the day, all they can agree on is that those mean anti-choicers are definitely wrong about the science.

Meanwhile, some pro-lifers are concerned that as research tools improve, we will find evidence that fetal pain begins much earlier than 20 weeks. In fact, one neurobiologist testified that unborn babies may be able to feel pain late in the first trimester. What happens if we pass the bill, and then a few years down the road learn that it isn't actually protecting all pain-capable unborn children?

To that I say: I hope that's exactly what does happen. The pro-life movement should be prepared to educate the public if strong new evidence arises, and amend the legislation. Being pro-science means you may not get it right the first time, every time. We should be willing to admit the mistake and fix it. Done right, that can go a long way toward earning the public's trust.

3. This is a waste of time because it won't pass the Senate.
True, it probably won't pass the Senate, which is not majority pro-life. But we can use this to highlight how extreme these "pro-choice" politicians are; most pro-choice Americans support bans on late-term abortions. And again, the getting-people-to-think component is there whether or not it passes.

4. This is a waste of time because the courts will strike it down.
Don't be so sure. People said the same thing about the partial-birth abortion ban, and the Supreme Court wound up finding that the interest in distinguishing between abortion and infanticide was strong enough to justify the legislation. The Supreme Court has never heard the fetal pain argument; it could very well find that this, too, is a strong enough interest. It all comes down to the highly unpredictable Justice Kennedy.


Coyote said...

I agree with your points but I also want to add that some humans who are already born cannot feel pain due to genetic disorders. Thus, when someone/something is able to feel pain isn't (or shouldn't be) very relevant in determining whether or not it is okay to kill him/her/it.

Kelsey said...

Very true. Good point.

ockraz said...

"It shouldn't be about pain."

We can all agree to that, so the question is: is there an upside sufficient to justify doing something based on ethical arguments we think are immoral?

"History may be a guide here. Similar concerns were expressed about the
partial-birth abortion ban."

I agree. It's an apt comparison.

"he PBA ban admittedly didn't prevent many abortions, and neither will a 20-week ban, since most abortions occur earlier."

Right. Any argument that it's worthwhile because of the lives it'll save is dubious.

PBA ban got people to think about the brutal nature of abortion in general,
and changed a lot of hearts and minds... The real value is educational value"

Is there data which shows that? I'm open to the possibility that this is true, but I'm inclined to think it isn't. I'd only expect some /temporary/ movement from the "mushy middle", but nothing more. There's always some fluidity in the polls because of ambivalence, and sustained news stories usually produce a bump for one side or the other.

I think focusing on PBA and 22+ wk abortions have the potential to do long term damage to the movement. Just think about the "successes" animal rights advocates have had with veal or that death penalty opponents have had regarding the electric chair.

ockraz said...

Gosh. Well, uh... really? Are you saying that the pdf doesn't count, or did you miss it?

I don't know which side is right, but I think it's morally irrelevant anyway. Plus, the haggling has a mildly absurd quality that reminds me of "when does life begin" arguments.

Science can establish when a new living human organism first exists (nuclei fuse in syngamy). It can give us a range for when personhood will develop (apperception appears not before 15-18 mo). Science can't say anything at all about which matters or why. What definition of "human" is the right one? Scientists are no better at answering that than plumbers.

The JAMA abstract asks, "What Is Pain?" and then pretends there's a scientific answer. Bollocks. Like choosing a definition of "human", this is a philosophical question. The article seems to imply that dogs probably feel pain, but octopuses definitely can't.

ockraz said...

PS: Because the Nagel article is considered a classic, the bat is the paradigmatic example. The JAMA article stipulates that pain necessarily requires certain particular brain activity, which obviously requires a certain set of brain structures. I chose the octopus because it is relatively intelligent (for an animal) but it's brain is nothing like ours and completely lacks the aforementioned structures. Every other intelligent animal I know of is a vertebrate - specifically a mammal or bird.

I found this which speaks to this issue:

Anyway, the point is that we cannot settle in any conclusive way whether an octopus feels pain, and therefore the JAMA article cannot be considered to establish in any conclusive way the thesis premised on that view of pain. In other words the conclusion that fetal pain only occurs when they claim is speculation because it's applying scientific observation to a speculative theory of what is the essential nature ofcexperiencing pain.