On November 1, the House Judiciary Subcommittee on the Constitution held a hearing on the Unborn Child Pain Awareness Act (H.R. 356). Sponsored by Rep. Christopher Smith (R-NJ), the measure would ensure that women seeking an abortion are informed about fetal pain.
In his opening remarks, Chair Steve Chabot (R-OH) stated “H.R. 356 defines a ‘pain-capable unborn child’ as ‘an unborn child who has reached a probable stage of development of 20 weeks after fertilization.’ The bill requires an abortion provider or his agent to provide a pregnant woman with information on pain of the unborn and anesthesia prior to aborting an unborn child capable of feeling pain. H.R. 356 would apply to the approximately 15,000-20,000 abortions that are performed each year in the United States on unborn children who are 20 weeks or more past fertilization.” He added, “Informed consent provisions that require physicians to provide women with information on pain of the unborn are consistent with the Supreme Court’s abortion jurisprudence. In Planned Parenthood v. Casey, the Supreme Court upheld Pennsylvania’s informed consent provisions that required an abortion provider to notify the pregnant woman of information on gestational age, fetal descriptions, the nature and risks of the procedure, child support, and abortion alternatives.”
Dr. Jean Wright, a professor and chair of pediatrics at the Mercer School of Medicine, addressed the development of a fetus and its ability to feel pain: “Studies at 16 weeks and beyond show hormonal responses to painful stimuli that exactly duplicate the responses that the infant and adult possess. The critical difference is that the unborn lacks the ability to modulate itself in response to this pain. Therefore, the responses of hormones to painful procedures show a 3-5 [times] surge in response. This ability to down-regulate the response in light of painful stimuli will not exist until the unborn child is nearly full term in its gestational age.” She added, “After 20 weeks of gestation, an unborn child has all the prerequisite anatomy, physiology, hormones, neurotransmitters, and electrical current to…create the conditions needed to perceive pain.” Dr. Wright explained that regional anesthesia administered to a woman would offer no pain relief to the fetus, adding, “Advances in intra-uterine surgery have required more detailed thinking about pain management of the unborn during these operations. In essence, two anesthetics are planned. One for the mother and one for the unborn child. If an intravenous anesthetic is used, such as a narcotic, it must go through the mother’s circulation, and then enter the fetus’ circulation, and then reach the fetal brain, in order to achieve pain relief. Dosing via this route must be such to achieve a safe level of anesthetic in the unborn. Similarly, doses of narcotics may be given directly into the amniotic sac, or into the vein of the fetus. Experience with premature infants shows us that the dose of narcotics is small, and can be given safely, and is inexpensive, and is effective in blocking pain and improving outcomes.”
The subcommittee also heard testimony from Dr. Arthur Caplan, chair of the Department of Medical Ethics at the University of Pennsylvania School of Medicine. Dr. Caplan cited three medical studies with conflicting conclusions on when a fetus is able to feel pain, stating, “It is possible to criticize each of these studies and reports. And there are many more such reports and studies with different conclusions. But that is precisely the point that Congress must carefully reflect upon before enacting legislation pertaining to fetal pain.” He added, “There is no consensus among the medical and scientific experts about precisely when a fetus becomes pain-capable. Some put the point at 28 weeks. Others say 26 or 24 and others younger still. But, without a clear consensus, legislation mandating that a health provider or physician represent something as a fact which is not known to be true or agreed upon by the majority of medical and scientific experts as valid would not only be poor public policy, it would set a terrible precedent for other topics where Congress might choose to mandate disclosures about ‘facts’ for political or even ethical reasons which have no foundation in science or medicine.” Dr. Caplan concluded, “One of the most troubling aspects of the proposed legislation is the concept of the government requiring a mandated script or formula be used to secure informed consent in a doctor-patient relationship or health care provider-patient relationship. I know of no other area of health care where Congress or a state government has mandated the content of informed consent.”
