Nebraska and the Falsehood of Fetal Pain

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Nebraska and the Falsehood of Fetal Pain

Susan Yanow

Nebraska's misleadingly named "Women's Health Protection Act" was enjoined by a court in August. Stopping that law was a victory. But Nebraska is not done with its attacks on women’s rights.

In August I cheered the injunction against Nebraska’s so called “Women’s Health Protection Act.”  This misleadingly named law would have required physicians to present all research about possible health risks related to abortion, even if the information is outdated, false or misleading, to every woman seeking an abortion.  Stopping that law was a victory. But Nebraska is not done with its attacks on women’s rights.

On October 15, Nebraska will enact another law that will have a chilling impact on women’s abortion access.  This law will ban abortions 20 weeks after conception or later, with exceptions only in cases of medical emergency, the pregnant woman’s imminent death, or a serious risk of “substantial and irreversible physical impairment of a major bodily function.”  The bill is based on unsubstantiated and misleading “science” that claims that a fetus can feel pain at 20 weeks.  It is also the first law in the country to exclude a woman’s mental health as a reason for an abortion.  Before this law is replicated in other states, advocates have to prepare us to fight this blatant attack on our right to abortion.

As advocates, we need to be able to talk about the reliable science of fetal pain and the connection between physical and mental health. We need to educate others, and ourselves and combat the use of pseudoscience and unsubstantiated “facts” as tools in the war to limit access to abortion.

The question of whether or not a fetus feels pain during an abortion can be a troubling one to some women and clinicians. The science of what a fetus experiences is complicated – without verbal reports and direct access to the mind of a fetus, scientists can only make inferences about what fetuses are able to experience. What is known is that to experience pain, the brain and nervous system must be developed enough to both react to a noxious stimulus and to have the enough neurological development and organization to experience the stimulus as “pain.” Authorities in both the U.S and Great Britain have conducted thorough reviews of all available studies of fetal pain. Both groups of experts have found that there is no evidence that fetuses develop the neural pathways necessary to feel pain until well into the third trimester. In fact, there is increasing evidence that the fetus never experiences the state of true wakefulness that is necessary for the experience of pain.  Instead, new research shows that the fetus is kept in a continuous sleep-like unconsciousness by the presence of specific chemicals in the uterine environment.  This makes sense; if a fetus inside the uterus could experience pain in the way that a baby can outside of the uterus, the sensation of having its head squeezed through the vaginal canal during birth would be excruciating!  These facts should be very reassuring to women who seek abortions and are concerned about fetal pain.  Advocates need to use these facts to counter those who would use claims of fetal pain to limit our rights. (For more information on Fetal Pain, see this fact sheet and these articles).

Roe is gone. The chaos is just beginning.

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While the question of fetal pain is complicated, the concept that preserving a woman’s mental and emotional health is not a “good enough” reason for an abortion is infuriating.  Mental health is as important to women’s well-being as is physical health. Our brains and bodies are connected, and this interconnectedness is well recognized in medicine and in health care legislation. Roe v. Wade recognized the threat to a woman’s mental health as a legitimate reason for ending an unwanted pregnancy.  The Nebraska ban, however, will disallow mental health as a reason for abortion after 20 weeks.  The Nebraska legislature has decided that avoiding theoretical fetal pain (based on discredited scientific theories) outweighs the emotional well-being of a pregnant woman.  Nebraska’s law limits a woman’s right to abortion through the second trimester as codified in Roe v. Wade and presents a clear challenge to Roe.  Once in place, this law will limit the practice of Dr. Leroy Carhart, who currently is the only provider in Nebraska and most surrounding states who provides abortions to 24 weeks (and later for fetal anomalies).  The Nebraska ban will mean more delays, travel, expense and barriers for women in the heartland of our country who need later abortion care.

This is yet another attempt to erode our right to abortion, law by law, week by week. What happens in Nebraska unfortunately won’t stay in Nebraska.  Get the facts and be prepared for similar controversies over fetal pain and mental health in your state.