On last Thursday morning I awoke with a sigh, knowing that I would be attending yet ANOTHER congressional hearing about Representative Trent Franks’ attempts to curtail women’s CONSTITUTIONAL right to access abortion care.
Just last year, I was at the exact same hearing on an identical bill. Last year, I was “lucky” enough to hear the chairman and his compatriots make outlandishly bald lies, compare women to dogs and farm animals, and compare abortion to the Holocaust. Thankfully, I was also lucky enough last year to sit in on the vote in the House where this despicable piece of legislation failed during a vote for cloture.
Undiscouraged by the fact that his neither his constituents, nor the residents of the District of Columbia, nor his colleagues wanted this bill to pass, Representative Franks chose to reintroduce the bill again during the 113th Congress. This year, however, there was one major difference. This year, Representative Franks had just announced that he would be attempting to expand H.R. 1797 (the so-called “District of Columbia Pain-Capable Unborn Child Protection Act”) to encompass the entire country, not just DC, thereby banning abortion after 20 weeks for the entire nation, a clearly unconstitutional move which violates Roe v. Wade’s proscription against prohibiting women’s access to abortion care pre-viability.
[Note: Among the many, many reasons to be opposed to this bill is that it defines weeks based on a fertilization timeframe - which cannot be precisely determined - rather than using LMP (last menstrual period), the standard in obstetrics care. This means that the bill would actually ban abortions at 22 weeks gestation - still well below the threshold of viability].
Before moving on to the substance of the bill itself, I’d like to take just a moment to talk about the farce of a hearing that I witnessed last week. First, as was the case last year, Representative Franks, as chairman of the subcommittee, bucked House tradition and limited testimony in opposition to the bill to ONE individual. Rather than bring in a scientist to debunk the outrageous junk science claims made by proponents of the legislation, the bill’s opponents opted to give a voice to a woman who would have been severely negatively impacted by this legislation had it been passed prior to her pregnancy termination: Ms. Christy Zinks. Ms. Zinks’ testimony (which you can read here) was a powerful reminder of why decisions regarding pregnancy and pregnancy termination need to be left to pregnant persons and their doctors, NOT politicians. Ms. Zinks is not a doctor, so she did not provide medical testimony. What she did provide was an account of her experiences making the difficult decision to terminate a very much wanted pregnancy at almost 22 weeks due to severe fetal abnormalities.
Of the other three individuals to testify, only one actually provided relevant (albeit specious) testimony: Dr. Maureen Condic. Because her claims are the only claims of any substance and of any relevance to the bill (probably because they “coincidentally” mirror the bill’s legislative findings) I will save a discussion of her testimony and her claims until the end.
The first proponent to testify was Dr. Anthony Levatino, a former abortion provider turned antichoice advocate. As was the case with last year’s hearing, his testimony consisted entirely of a show and tell of second trimester abortion instruments, peppered with words like “gruesome,” “ripping,” and “tearing,” meant to inflame listeners but do little in the way of education. He also attempted to infer that abortions were never necessary to save the life of a pregnant woman (a patently false statement) by claiming that HE had never had to perform an abortion to save a woman’s life. Nowhere in his testimony, however, did he provide ANY evidence whatsoever as to the existence of the ability of fetuses to feel pain.
The second witness in favor of the bill was the “renowned” Jill Stanek, a former abortion care provider who attempted to “blow the whistle” on what she claimed were inhumane conditions concerning abortions performed at Christ Hospital and helped lead the charge in calling on Congress to draft and pass the superfluous Born-Alive Infant Protection Act (BAIPA). Her claims proved meritless, though his has not deterred Ms. Stanek from continuing to repeat them. During her testimony, Ms. Stanek continued to describe her former claims, as well as spoke at length about the recently convicted murderer, Dr. Kermit Gosnell. What she did NOT provide, however, was ANY evidence as to the existence of the ability of fetuses to feel pain.*
For those keeping track at home, at this point we have one witness against the legislation who provided reasons how the legislation would have DIRECTLY negatively impacted women like her, and two witnesses for the legislation who spent their time rambling about the “evils” of abortion whilst providing no information relevant to the legislation.
And now we come at last to Dr. Condic’s testimony, testimony alleging fetuses can feel pain as early as twenty weeks into a pregnancy (actually, she went even further than that, to eight weeks. Yes, folks, EIGHT weeks).
As Dr. Lisa Corrigan described earlier this year in an excellent post about other so-called “fetal pain” bills around the nation, Dr. Condic’s testimony was nothing more than junk science, consisting of cherry picked quotations about fetal development of pain receptors rather than a discussion of comprehensive scientific literature. Just as Dr. Corrigan suggested, Dr. Condic’s testimony relied on assertions about fetal reflexive responses to noxious stimuli, even though it is clear that reflexive responses are NOT synonymous with the experience of pain. Dr. Condic’s testimony also relied on the administration of anesthesia during fetal surgery to prove the existence of fetal pain, though anesthesia is administered during fetal surgery for reasons OTHER than pain relief, e.g. to inhibit fetal movement, to cause uterine atony, and to prevent hormonal stress responses associated with poor surgical outcomes in neonates.
In response to suggestions such as these, several large scale meta-analyses of studies on the possibility of fetal pain and the use of fetal analgesics have been undertaken, all of which indicate NO possibility of fetal pain perception at twenty-two weeks gestation. For instance, in 2010, the Royal College of Obstetricians and Gynecologists (RCOG), in reviewing all available literature on the topic, stated the following:
In reviewing the neuroanatomical and physiological evidence in the fetus, it was apparent that connections from the periphery to the cortex are not intact before 24 weeks of gestation and, as most neuroscientists believe that the cortex is necessary for pain perception, it can be concluded that the fetus cannot experience pain in any sense prior to this gestation. After 24 weeks there is continuing development and elaboration of intracortical networks such that noxious stimuli in newborn preterm infants produce cortical responses. Such connections to the cortex are necessary for pain experience but not sufficient, as experience of external stimuli requires consciousness. Furthermore, there is increasing evidence that the fetus never experiences a state of true wakefulness in utero and is kept, by the presence of its chemical environment, in a continuous sleep-like unconsciousness or sedation.
Important to note here is that not only are physical structures required for pain perception, but so is consciousness.
Another exhaustive review of medical literature concerning the possibility of fetal pain was conducted by researches at the University of California, San Francisco (UCSF) who pulled together more than 2000 articles on the topic and concluded that while the neural pathways necessary to experience pain begin forming after 23 weeks gestation, the pathways are NOT functional and therefore cannot transmit noxious stimuli to the cortex prior to 29 or 30 weeks.
In their report, published in the Journal of the American Medical Association (JAMA), the authors stated:
Pain perception requires conscious recognition or awareness of a noxious stimulus. Neither withdrawal reflexes nor hormonal stress responses to invasive procedures prove the existence of fetal pain, because they can be elicited by nonpainful stimuli and occur without conscious cortical processing. Fetal awareness of noxious stimuli requires functional thalamocortical connections. Thalamocortical fibers begin appearing between 23 to 30 weeks’ gestational age, while electroencephalography suggests the capacity for functional pain perception in preterm neonates probably does not exist before 29 or 30 weeks. (emphasis added)
Together, these and other reviews of thousands of research studies on the topic of fetal pain perception and the use of anesthesia conclude that it is IMPOSSIBLE for fetuses to feel pain during the second trimester, let alone at twenty-two weeks, and HIGHLY unlikely for a fetus to feel pain prior to thirty weeks, if at all, during gestation.
Applying this research to Dr. Condic’s statements (which, again, “coincidentally,” mirror H.R. 1797’s legislative findings) , it becomes apparent just how outlandish her claims really are.
To begin, even her definition of pain is not the generally accepted definition in the field of studying pain.
The most commonly accepted definition of pain in the scientific and medical worlds is the one developed by the International Association for the Study of Pain’s Task for on Taxonomy:
An unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage….Activity induced in the nociceptor and nociceptive pathways by a noxious stimulus is not pain, which is always a psychological state, even though we may well appreciate that pain most often has a proximate physical cause.
While the definition Dr. Condic provides from Medline describes pain as, “a state of physical, emotional, or mental lack of wellbeing or physical, emotional, or mental uneasiness that ranges from mild discomfort or dull distress to acute often unbearable agony, may be generalized or localized, and is the consequence of being injured or hurt,” the doctor attempts to negate the required psychological component of pain by appealing to the subjective nature of pain (“Experiences one person might find extremely painful may seem insignificant to someone else”). However, the precise psychological response an individual has to a noxious stimulus is not at issue. What matters is that there IS a psychological response to the stimulus, a point that Dr. Condic seems bent on obscuring.
Continuing, her statement that, “There is universal agreement that pain is detected by the fetus in the first trimester,” is patently false, as demonstrated by the reports above. Such a statement is based on a (purposeful) misunderstanding of the definition of pain, and of the difference between reflexive responses to noxious stimuli and actual perception of pain. As mentioned above, pain requires conscious perception of an emotional experience, as opposed to mere physical activation of nociceptive pathways (noniception).
From the JAMA report:
The figure above demonstrates how reflexive reaction to noxious stimuli can, and does, exist early in neurological development (perhaps even as early as the eight weeks Dr. Condic mentioned, and most certainly by 18 weeks gestation) but does NOT indicate a psychological experience of pain, which can only exist much, MUCH later in neurological development.
Further, her insistence that evidence of fetal pain can be shown by the fact that individuals born with damaged or missing cortices (e.g. individuals with hydranencephaly) can still experience consciousness as it is commonly known has never been definitively proven. In cases where it has been discussed, Dr. Condic conveniently fails to mention that those children with hyroancephaly who survive past infancy most often have some of their cerebral hemispheres and varying levels of connections between the portions of the brain stem and what remains of the cortex. Additionally, even in cases where authors have postulated that consciousness MIGHT be possible in individuals with hydranencephaly, they have theorized that its occurrence would be the result of damage-related neuroplasticity – the ability of the brain to rewire itself to compensate for missing or damaged structures. This would NOT be the case in a typically developing neural system, which would require functional thalamocortical connections for consciousness, and therefore pain perception.
As for Dr. Condic’s comments (and the comments of Ms. Stanek) regarding the ability of extremely preterm infants to feel pain, I am at a loss. I can see no reason why a discussion of infants should be part of a discussion concerning fetuses. But if we must discuss pain perception among extremely preterm infants compared to fetuses, I think it is important for us to note that, in the uterus, a fetus is surrounded by adenosine, pregnanolone, and prostaglandin-D2, which both sedate and anesthetize a fetus whilst in utero. Once born, an infant’s first few breaths work to push these chemicals out of the infant’s system, permitting a stage of wakefulness / consciousness, and therefore a perception of pain. In addition, it has been noted that the vital sign responses of extremely preterm infants to noxious stimuli such as heel sticks is the same as their response to non-noxious routine, such as bathing and weighing, making comparisons between their responses and the responses of older infants incredibly difficult.
By now I hope it is clear that the claims that a fetus at 22 weeks gestation can feel pain are complete and total fabrications. While neural connections may be in existence at that point, they are not functional, meaning input from noxious stimuli cannot be transmitted to the cortex to be recognized as as pain. Further, even IF we pretend that the thalamocortical connections in place at 24 weeks (the date mentioned by RCOG) were somehow magically functional at that point, and even IF we pretend that a fetus were not being suspended in an unconscious state due to the high levels of adenosine, pregnanolone, and prostaglandin-D2 while in the uterus, an abortion performed during the third trimester would still not cause any pain to a fetus because, as Nikki Liz Murray points out:
[P]rocedures done in the third trimester involved the administration of digoxyn into the fetal heart on the first day of the procedure. It is not until 2 or 3 days later that the actual abortion procedure takes place, and by that point, fetal demise has occurred, meaning no matter the means of removing the fetus from the uterus, the fetus is not going to experience any pain.
Now that the concept of fetal pain is out of the way, I would like to take a moment to talk about a few of the other multitudinous problems with this bill.
First and foremost, I would like to draw attention to the definitions section of this bill. The drafters of H.R. 1797, for some unknown reason, chose to eschew standard medical definitions for medical terms, and instead crafted new meanings for already well-defined words.
For example, under H.R. 1797, abortion is defined as, “the use or prescription of any instrument, medicine, drug, or any other substance or device–`(A) to intentionally kill the unborn child of a woman known to be pregnant; or`(B) to intentionally prematurely terminate the pregnancy of a woman known to be pregnant, with an intention other than to increase the probability of a live birth or of preserving the life or health of the child after live birth, or to remove a dead unborn child.”
I also take issue with the fact that the term “fetus” is nowhere to be found in this piece of legislation, even though the correct terminology for a human organism inside a uterus at 20 weeks gestation is fetus.
I’m not entirely sure why the “gyneticians” (special thanks to Planned Parenthood for this term) who drafted this bill felt the need to redefine words or use non-medical terminology to discuss a medical procedure, but shall we continue?
Second, H.R. 1797 would specifically impact women seeking abortion care past 22 weeks gestation. And as Dr. Corrigan has so astutely pointed out, a large number of fetal anomalies – particularly those that would prove lethal to a fetus – are only detected via ultrasound after weeks 18-24. Because this bill does not provide an exception for lethal fetal abnormalities, if passed, women will be forced to carry pregnancies with fetal abnormalities to term, regardless of fetal viability. Twenty-four percent of patients undergoing labor experience complications compared to only three percent of patients undergoing dilation and extraction. H.R. 1797, therefore, places women’s lives and health at risk by forcing them to carry nonviable fetuses to term instead of permitting them to undergo an abortion.
Further, even in cases where the bill permits a physician to perform an abortion to save the life (note: no exceptions for health here, nor for rape or incest) of a pregnant woman (when her life is endangered by physical disorders, of course, because apparently psychological disorders can’t possibly pose real threats to women’s lives), the bill requires the physician to perform an abortion in the manner that would provide the best opportunity for the fetus to survive. This would almost always require a physician to induce labor – and might even require a physician to perform a Caesarean section – even though such procedures would be against the best interest of the health of the mother – as the bill REQUIRES the doctor to choose the method based on what is best for the fetus unless such a method would cause a greater risk of death to the pregnant person or would pose a substantial and irreversible risk to a major bodily function.
In short, H.R. 1797 subjugates a pregnant woman’s health, well-being, and other human rights to protect even nonviable fetuses.
Finally, I would be remiss if I failed to point out that the entire above conversation is actually moot. As I’ve pointed out many, many times in the past, only one of these entities is a person: the woman. And as a person, a woman has certain human rights that are inviolable – like the rights to life, to bodily integrity, to the highest attainable standard of health, to liberty, and to determine the number and spacing of any children – rights that would be impermissibly curtailed should H.R.1797 be implemented.
Till next time,
*Random aside: If you look closely at the Judiciary Constitutional Subcommittee hearing page, you’ll notice that each of the Witnesses has a “Truth In Testimony” disclosure document beneath their name…each witness, that is, except for Ms. Stanek. The reason they have this document is because of House Rule XI 2(g)(5), which states:
Each committee shall, to the greatest extent practicable, require witnesses who appear before it to submit in advance written statements of proposed testimony and to limit their initial presentations to the committee to brief summaries thereof. In the case of a witness appearing in a nongovernmental capacity, a written statement of proposed testimony shall include a curriculum vitae and a disclosure of the amount and source (by agency and program) of each Federal grant (or subgrant thereof) or contract (or subcontract thereof) received during the current fiscal year or either of the two previous fiscal years by the witness or by an entity represented by the witness. Such statements, with appropriate redactions to protect the privacy of the witness, shall be made publicly available in electronic form not later than one day after the witness appears.
It is now 10:00am, SIX days after Ms. Stanek testified, and her disclosure has still not been made publicly available. I wonder when Mr. Franks will be rectifying this violation of House rules?
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