Does a fetus experience pain?
That question, perhaps part science and part philosophy, is at the heart of a new push by Republican lawmakers to curtail abortions in Minnesota.
Under the proposed “Pain-Capable Unborn Child Protection Act” introduced this week in both the House and Senate, abortions would be banned on fetuses older than 20 weeks, the age some — but not all — scientists believe the unborn can experience pain.
Modeled after a 2010 Nebraska law, the proposal carries the flavor of a number of proposals nationwide by Republicans making good on campaign promises. It’s an issue they frame as a moral imperative underscored by recent science suggesting pain begins earlier than conventionally thought — or than believed at the time of the U.S. Supreme Court’s landmark Roe v. Wade decision legalizing abortions.
DFL Gov. Mark Dayton appears likely to veto such a bill, but several Republicans said they hoped there would be enough anti-abortion Democrats to override it.
Minnesota law currently bans abortions past the stage when a fetus is considered viable outside the mother’s body. While no age is prescribed, no facilities offer abortions after 23 weeks.
Of the 12,386 abortions performed in 2009 in Minnesota where the age of the fetus was reported, 189, or about 1.5 percent, involved a gestational age older than 20 weeks, according to the Minnesota Department of Public Health’s most recent data. Abortion rights supporters note that a number of the abortions performed after 20 weeks involve serious fetal abnormalities.
But the relative rarity of such procedures is irrelevant, proponents said. They pointed to the type of procedure often used at such an age, which can involve dismembering the fetus while it’s still in the womb.
PAIN OR NO PAIN?
A major force behind the belief that fetuses that young can experience pain comes from research by Dr. Kanwaljeet Anand of the University of Tennessee Health Science Center in Memphis. It was Anand who decades ago led research that established premature babies can experience pain. Before that, they weren’t given any pain medication, even for major procedures.
So Anand’s subsequent research that led him to conclude fetuses at 20 weeks can experience pain inside the womb has been seized upon by anti-abortion forces.
On the other side, a 2005 research paper published in the Journal of the American Medical Association reviewed more than 2,000 research articles and concluded: “Evidence regarding the capacity for fetal pain is limited but indicates that fetal perception of pain is unlikely before the third trimester.” That research was led by Dr. Mark Rosen of the University of California-San Francisco, a pioneer in open-heart surgery on fetuses still inside the womb.
The paper concluded, in essence, that to fully experience pain — as opposed to a reflex — the brain needs to be developed much more than it is in a 20-week-old. Other research has concluded babies are basically under a natural anesthesia for the entire pregnancy.
The proposal includes legislative findings that summarize the science in favor of the fetal pain argument, mentions but quickly disposes of the opposite view and concludes, “Substantial medical evidence indicates that they are capable of feeling pain.”
“It’s not conclusive at this point, and I think it’s irresponsible for us to put scientific findings on such issues,” said Linnea House, executive director of the abortion rights group NARAL Minnesota. “This bill is so far-reaching and broad, it’s almost like an abortion omnibus bill.”
NARAL’s official position is not to oppose so-called viability laws — such as Minnesota’s current law — but to demand exceptions in the cases of rape, incest or when the mother’s health is in danger.
Currently, the GOP proposal makes exceptions only when the mother’s health or life is in danger, but not for cases of rape or incest.
“It’s not the fault of the unborn child,” said Sen. Warren Limmer, a Maple Grove Republican who is co-sponsoring the proposal. ‘I don’t know why we even go down that road.”
House points to a number of the bill’s provisions that go beyond the mere age of the fetus that she says are designed to hinder access to legal abortions.
House suspected that could be an inroad for conservatives who hope to outlaw some forms of contraception, such as the pill, which can be viewed as interfering after an egg has been fertilized. Hoffman said the intent was only to emphasize the “miracle of conception.”
The bill also would allow the father of the fetus, or a relative of the mother, to sue anyone who “performed or induced” an abortion that violates the provision. The proposal would allow the woman on whom the abortion was performed to sue anonymously, a legal rarity.
In what appears to be a first for Minnesota, the proposal would establish a legal defense fund to pay for defending the bill, if it becomes law, in court and that fund could be populated by donations. The move is partially to blunt any criticism that such a law could cost Minnesota taxpayers in tight financial times, but also to provide an outlet for anti-abortion groups to show their support, proponents said.
Several lawmakers said they are not aware of any such fund currently operating like that in the state. An official with the attorney general’s office could not be reached for comment.
Since being adopted last year, Nebraska’s law has not been challenged in court, but to Dayton’s mind, the Republican plan would be clearly unconstitutional.
On Tuesday, he said: “I’ve made my position clear. I think Roe v. Wade has established that it’s a constitutional right, and I think the state legislators have a responsibility to uphold the United States Constitution, and that’s the only policy I’ll take.”