Lame duck congress feels your fetal pain

You’ve gotta love it when the National Catholic Register says “the future looks grim” for anti-choice legislation. The antis are worried that a Democratic congress won’t support riders such as the disastrous Hyde Amendment, which eliminated Medicaid funding for abortion. I think that’s unlikely to happen. But they also say the more pro-choice congress will increase Title X family planning funds, which is well within the realm of possibility. Wheeee!
Until then, the lame-duck congress will be trying to push through a few more anti-choice bills. Specifically the ridiculous and scientifically unsupported fetal pain legislation:

Abortion providers would be required to inform the mothers that evidence exists that the procedure would cause pain to the child [and offer the mothers anesthesia for the baby. The mothers would accept or reject the anesthesia by signing a form.

The legislation would require the consent form after 20 weeks gestation. But research shows it’s highly unlikely the fetus could feel anything before the 28th week, by which time abortion is illegal, anyway. And it’s worth mentioning again that, on top of being based on junk science, the Unborn Child Pain Awareness Act defines a woman as a “female human being who is capable of becoming pregnant.” Shudder.

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  • Trish Weber

    does this definition mean that if i get my tubes tied i am no longer a woman?
    or anyone post-menopausal is no longer a woman? or anyone who is infertile?
    how are these people to be classified, then? the post-menopausal or infertile or sterilized females?
    do we not exist?
    (i know, i know, a rhetorical question)

  • The Law Fairy

    So… wait.
    I’ve been on the pill for three years. And I’ve had enough condom-less sex in those three years to know that they’re DEFINITELY working (or that the men I sleep with are infertile. Either way).
    I now use my pills to skip my period (by the way, ladies, it’s HEAVEN on this side of the fence. Seriously HEAVEN). So I’m pretty much guaranteed that I can’t get pregnant *at this moment*.
    So am I not a woman? Or is my woman-status taking a sabbatical? Maybe being a woman is like being a lawyer, and you can go on inactive status if you don’t want to pay your bar dues? If so, can I also be exempted from sexism? OOOOOOOO — can I join the PGA? And the Elks? And the Masons?
    I mean, because if I’m not a woman, I must be a MAN, right?


    not to split hairs, but if you are using birth control you are still “capable” of getting pregnant as long as you discontinue using it. the extremely inadequate definition clearly excludes pre-pubescent girls and post-menopausal women (as well as post-op trans-sexuals, who, at least in the state of NY, can legally change their birth certificate to reflect their new sex).

  • VanGaalen

    aside from every other disturbing piece of information in the post (how sad is it when you have to qualify and prioritize your level of disturbance…), what really sticks with me is their definition of “woman”.
    how reductionist and exclusionary is THAT!? what about women who for whatever reason are unable to become pregnant? post-menopausal women? transwomen?
    and what about women who don’t have sex with men? or women who don’t have sex at all? are they still women? does biology trump individual choice on that one?

  • VT Idealist

    Eek! So what is a female hunamn not capable of becoming pregnant defined as? The actual wording in the bill states “The term ‘woman’ means a female human being who is capable of becoming pregnant, whether or not she has reached the age of majority.” Now, I understand that this is legal speak for ackowledging that a woman under the age of 18 can become pregnant. But did they have to word it like that? Maybe it’s just my angry ovaries speaking, but the wording seems to define a woman by her uterus and it just kind of makes it sound like any female who can’t become pregnant is not a real woman. Perhaps a better wording would have been to just say ‘any female human being, whether or not she has reached the age of majority.’
    With that said, there is another scarey part of this bill. Have any anesthetics or analgesics been approved by the FDA for use in a fetus? Is this bill asking physicians to use these (often powerful) drugs off label?

  • Paige

    Another scary part of the legisation is that it applies to women seeking abortions twenty weeks after FERTILIZATION — NOT twenty weeks LMP, the traditional measure for dating the length of a pregnancy. Brought to you by the people that think emergency contraception is an abortifacient if it prevents a fertilized egg from implanting in the uterus (which almost half of all fertilized eggs fail to do naturally — and by the way, the most recent scientific evidence indicates that EC works by preventing fertilization, not implantation).

  • Ann

    Wow, Paige, I had no idea. There’s truly no limit to how appalling this shit is.

  • The Law Fairy

    Amy, true enough, but at that point, legally speaking, the “capable of getting pregnant” language becomes meaningless. For instance, there’s a presumption in property law, for purposes of construction of wills and real estate contracts, that holds that even an aged woman could still, theoretically, bear children (which matters for purposes of the rule against perpetuities and other arcane requirements that give law students nightmares). It’s called the Fertile Octogenarian Rule. I swear to God I’m not making this shit up.
    SO — if they’re defining “woman,” legally speaking, as someone capable of getting pregnant, there has to be a way that this is different from the standard legal definition of “woman.” The only modifier is that the woman should be capable of getting pregnant, and it makes it clear that this qualifier is not one concerning age, since it explicitly eschews relation to the age of majority. Thus, I’m having a hard time seeing the difference, for legal purposes, between me and a woman who has had her tubes tied (she could have the operation reversed, for instance).
    And then to what extent does the law apply to women who are not *really* fertile but are able to conceive through invasive and expensive methods like IVF? Do they count as “capable” as well? Surely the fundies who seem so obsessed with the notion of accidental pregnancy (as this is essentially their sole “rational” argument against gay marriage) would not count one of these women as capable of conceiving?
    I guess my point is just that this is a TERRIBLE legal definition. It’s wrought with ambiguity. I would hope that any sensible judge would look at the definition and throw it out for vagueness.

  • Bearcat

    I agree that the definition is incredibly vague, but don’t get so worked up about a legal definition. Laws pare down definitions all the time to the point that it seems ridiculous to anyone that doesn’t have a law degree. But those only apply within the law, so that the law doesn’t have to say “female human being who is capable of becoming pregnant” fourteen times.

  • CouldBeeWorse

    Sorry to rain on the parade, but the definition of woman quoted above is NOT the definition in the bill that the House is going to vote on, which is H.R. 6099. You can read the bill on the congressional website, The actual language is: “(6) WOMAN- The term ‘woman’ means a female human being whether or not she has reached the age of majority.”
    More to the point, there are lots of reasons to be very skeptical of the assertion that “it’s highly unlikely the fetus could feel anything before the 28th week. . .” That statement somewhat overstates even the assessment of the paper that is indirectly cited, which appeared in JAMA, and that paper was critiqued on substantial grounds by some highly credentialed commentators.
    Think about it. If one visits any neonatal unit one is likely to find premature newborns at 23 weeks, 24 weeks, 25 weeks, 26 weeks, and 27 weeks LMP. It has been recognized by medical science for decades that these newborn premature infants feel pain, and steps are taken to minimize it to the extent possible. Why should we believe that the fetus in utero, at the very same stages, is insensible to stimuli (during an abortion) far more violent than anything the neonatal staff would inflict on the newborn?
    Keep in mind, as noted above, the bill applies after 20 weeks fertilization age, which is 22 weeks in the LMP system. Those born at 23 weeks now have about an even shot at long term survival.

  • libdevil

    If this moronic shit were to pass, can you imagine how many marriages would instantly be invalidated in states with gay-hate ammendments that limit marriage to between one man and one woman? If the women in a lot of those marriages were no longer women under the law…

  • HotblackDesiato

    The definition for “woman” would only be effective for this law. It would not invalidate marriages anywhere or have any other legal effect on the definition of women.
    Getting back to the meat of the law, it seems pretty straight forward that a late term fetus would feel pain in some way. Is it that you think that most women understand this and do not have to be told, and so the proposed law amounts to harassment? Or is it that the sensations that the fetus may experience are irrelevant?
    Also, where in the U.S. are abortions illegal after the 28th week?

  • CouldBeeWorse

    I read some more about this legislation. According to the National Right to Life website, NARAL says it “does not intend to oppose this legislation.” The entire NARAL statement is reproduced here:

  • VT Idealist

    CouldBeeWorse, the definition that I quoted was from the senate bill, S.51 ( The house bill that you quoted (H.R. 6099) has a more palatable definition of woman. Semantics aside, I still don’t agree with the meat of the bill. This bill is meant to scare woman out of having an abortion.
    As far as the reseach goes, a 1996 atricle from the British Medical Journal ( a study on the effects of intrauterine needling of fetuses at 23 or more weeks of gestation states “fetal responses to invasive procedures do not indicate a conscious appreciation of pain. Scientific evidence suggests that women considering abortion can be assured that fetuses do not experience pain in the way that those who oppose abortion claim. Parliamentary claims that a fetus may feel pain should be viewed as a tactic in the effort to undermine public confidence in the current abortion legislation.” The article goes on to say “responses to noxious stimuli before 26 weeks cannot be interpreted as pain because the “cortex is not a functional unit.”3 After 26 weeks, however, we are left to consider whether the biological development of the fetus is so advanced that it may begin to experience pain. Whether the fetus feels pain, however, hinges not on its biological development but on its conscious development. Unless it can be shown that the fetus has a conscious appreciation of pain after 26 weeks, then the responses to noxious stimulation must still essentially be reflex, exactly as before 26 weeks.”

  • CouldBeeWorse

    To my mind, a perception that the bill is “meant to scare woman out of having an abortion” is irrelevant to its merits. I would not want to be the one to argue that women are fragile vessels who must be shielded from information that may be unpleasant or distressing. Perhaps NARAL reached the same conclusion, because in the statement I linked above, they said, “Pro-choice Americans have always believed that women deserve access to all the information relevant to their reproductive health decisions. For some women, that includes information related to fetal anesthesia options. NARAL Pro-Choice America does not intend to oppose this legislation.”
    So the threshold issue, to my mind at least, is whether there is indeed substantial evidence that the human fetus (or premature newborn) can experience pain at, say, 22-24 weeks. The article you cite in pertinent. But it appears that there are quite a few others, some more recent and some with a lot of apparent medical weight, that draw contrary conclusions. For example, a review of the available studies on the subject published in September 1999 in the British Journal of Obstetrics and Gynaecology — which is the top ob-gyn journal in the United Kingdom –concluded: “Given the anatomical evidence, it is possible that the fetus can feel pain from 20 weeks and is caused distress by interventions from as early as 15 or 16 weeks.”
    Prof. Dr. Kanwaljeet S. Anand of the University of Arkansas, whose pain research years ago changed many practices involving newborns, said, “It is my opinion that the human fetus possesses the ability to experience pain from 20 weeks of gestation, if not earlier, and that pain perceived by a fetus is possibly more intense than that perceived by newborns or older children.”