"Fetal pain" anti-abortion laws spur fierce debate

CHICAGO (Reuters) - Danielle Deaver says she did not want a late-term abortion -- she wanted a baby.

But when the Nebraska woman lost most of her amniotic fluid at 22 weeks last November, she was told the baby girl would likely die outside the womb with undeveloped lungs, and that the fetus could be slowly crushed by the uterine walls.

Deaver asked that labor be induced, so that whatever happened would happen quickly. But doctors could not do it because of a new law that bans abortions after 20 weeks, based on research suggesting this is when fetuses feel pain.

Deaver went home, worrying that every time she felt movement, it was because the baby was suffering. Deaver went into labor after ten days. Baby Elizabeth died in her mother’s arms after 15 minutes.

Deaver’s crisis illustrates the complexity of the debate over “fetal pain” abortion bans being proposed in 16 states -- a push that has ignited powerful emotions on both sides.

“This pregnancy was planned and wanted,” said Deaver, 34, a married nurse with one other child. “This had nothing to do with abortion whatsoever, and we were affected by an abortion law.”

The bills, promoted by the National Right to Life Committee copy the Nebraska law, which passed last year. Similar fetal pain bills have passed both legislative chambers in Kansas, Oklahoma and Idaho. Laws also have passed through one legislative chamber in Indiana and Iowa.

The bills make exceptions if the mother’s life is at risk, or if she faces risk of a substantial, irreversible medical injury, according to Mary Spaulding Balch, director of the department of state legislation of the Right to Life Committee.

“This is a bill that recognizes the inherent right to life of a child that is capable of feeling pain,” said Balch. “It is an acknowledgment that this unborn child is a member of the human family and deserves the same rights as any other member of the human family.”

Balch said the bills do not make exceptions for a fetus like Deaver’s that may have problems. “You don’t kill someone to alleviate his suffering,” Balch said. “You try to address his suffering.”

Iowa State Rep. Mary Ann Hanusa, a Republican who supports a 20-week ban that passed the House last week, agreed that there are “hard situations” like Deaver’s but that doesn’t mean an abortion after 20 weeks should be allowed.

“We do not allow euthanasia of someone who may be dying or is infirm simply to allow them to die sooner,” Hanusa said.

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Iowa State Rep. Sharon Steckman, who voted against the proposed Iowa bill, said a pregnant woman would have to be “pretty much at death’s door” in order to qualify for an exception.


Medical opinion about when fetuses feel pain is conflicted. The position of the American College of Obstetricians and Gynecologists is that there is “no legitimate scientific information that supports the statement that a fetus experiences pain.”

ACOG notes that certain brain and neurological developments, including neurotransmitted hormones, have to be in place to perceive pain. Animal studies show these hormones are developed only in the last third of gestation.

Some pro-life arguments on fetal pain are taken from research by Kanwaljeet J.S. Anand, a professor of pediatrics, anesthesiology, anatomy and neurobiology at the University of Tennessee Health Science Center.

Anand said that prenatal surgeries are routinely done with anesthetic, and that despite ACOG’s 2005 statement, “the consensus opinion seems to be in favor of the fact that fetuses do perceive pain.”

“Mine is not a lone voice in the wilderness,” Anand said.

Anand describes pain perception in fetuses as not an on/off switch but rather like a “dimmer switch” where perception gradually increases. He thinks 20 weeks is “a safe bet” for when it begins, though individuals differ.

But Anand said he is “very uncomfortable” with his research being used by the pro-life movement. He said the issue of fetal pain deserves attention separately from the abortion debate, and he finds the notion that one has to be pro-choice or pro-life “simplistic.”

“If my daughter was raped on a date and became pregnant, of course I’m pro-choice,” Anand said. “If my daughter is going steady with her boyfriend, she’s 29 years old, and they broke up and she finds herself pregnant, of course I’m pro-life... Every situation is unique.”

Anand said he would err on the side of allowing a woman to make her own decision, and that if a late-term abortion is done, fetal pain can be prevented through anesthetic or by clamping the umbilical cord.


The U.S. Supreme Court in Roe v. Wade upheld a woman’s right to an abortion until fetal viability.

Balch noted that prenatal medicine has advanced dramatically since the 1973 Roe v. Wade decision, allowing a clearer view of the humanity of the unborn child.

“The ultrasound has allowed us to have a window to the womb and when people have seen that they become pro-life,” Balch said. A 2007 Gallup Poll showed that 72 percent of those polled thought “late term” or “partial birth” abortion should be illegal, up from 68 percent when the question was asked in 2003.

“We would welcome a challenge to the pain-capable unborn child act,” said Balch. “We think we can defend our position and we would be victorious at the Supreme Court level.”

Some states, including Minnesota, require women undergoing late term abortions to be informed about fetal pain, Balch said.

Hanusa said late-term abortions involve sucking out a fetus and tearing its limbs off. “If you imagine that happening to a four-year-old child, the community would be up in arms,” said Hanusa.

Abortions after 21 weeks represent 1.5 percent of all abortions, according to the Guttmacher Institute, which researches reproductive health issues.

“My experience with women I’ve talked to who have ended pregnancies at this stage of gestation is that these are very tragic experiences,” said Jill June, president and CEO of Planned Parenthood of the Heartland, recalling a case where a fetus’s organs were developing outside of the chest wall. “You cannot draw one bright line in the sand and say you can’t cross this line because pregnancies are very, very different and desperate things can go wrong.”

The bills have a good chance of becoming law in several states because of the Republican sweep in midterm elections last year. Republicans tend to oppose abortion and most Democrats tend to oppose new limits.

Republicans gained nearly 700 state legislative seats, with control of 25 state legislatures and 29 governorships, according to the National Conference of State Legislatures.

Writing and reporting by Mary Wisniewski, Editing by Greg McCune