At what point can a fetus or unborn child feel pain?
That’s the focus of the controversial ordinance being voted on by city residents that would ban abortion after 20 weeks unless a mother’s life is in danger.
Albuquerque is the first U.S. city in which voters are being asked to consider such a measure as a city-wide ordinance, and campaigning on both sides has been wide-ranging, aggressive and full of emotion. But the ballot itself keys in on the issue of pain felt in the womb.
The proposed law is called the Pain Capable Unborn Child Protection Ordinance.
A lengthy, technical preamble at the top of the ballot explains the position that a fetus can experience pain 20 weeks after conception. The first 11 paragraphs of the ballot initiative are copied almost word for word from a website called Doctors on Fetal Pain, registered under a privacy-protected domain name, doctorsonfetalpain.com.
Carol Tobias, president of the National Right to Life Committee, said the website is a compilation of experts who “are willing to testify that the baby has actually developed to the point where he or she can feel pain” by 20 weeks.
On the other side of the debate, experts say no study has shown that a fetus can feel pain at that point. An often-cited British study says it cannot feel pain until 24 weeks, while another one puts that date at 29 to 30 weeks.
But the science of fetal pain is complex. Doctors note that pain is a subjective experience and that no objective methods exist for measuring pain, even in adults.
The ballot language quickly wades into technical language.
“Pain receptors are present throughout the unborn child’s entire body and nerves link these receptors to the brain’s thalamus and subcortical plate by no later than 20 weeks after fertilization,” the first paragraph of the ballot says.
As complicated at is sounds, that opening statement alludes to a central dispute in the political debate on fetal pain.
Scientific literature points to the development of the cortex as the key step in the ability to sense pain. The cortex is a sheet of densely packed cells that form the outer part of the brain and plays a role in higher functions, such as perception, memory and thought.
“There’s no evidence that fetuses at 20 weeks have the capacity to feel pain because the fetus hasn’t developed the capacity at that point,” said Dr. Sandra Penn, an Albuquerque family practice physician who urges voters to defeat the ordinance.
But supporters of fetal-pain legislation contend that development of the cortex is not required to sense pain. They say the thalamus, which develops by 20 weeks, allows the fetus to feel pain. The thalamus is a structure at the top of the brain stem that relays information to other parts of the brain.
A 2010 review written by a panel appointed by Britain’s Royal College of Obstetricians and Gynecologists is called “Fetal Awareness: Review of Research and Recommendations for Practice.”
In its summary, the panel said nerve connections “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” before 24 weeks.
“Although the framework for the nervous system in the growing fetus occurs early, it actually develops very slowly,” the British report said.
The review also cites “increasing evidence that the fetus never experiences a state of true wakefulness” and remains “in a continuous sleep-like unconsciousness or sedation” that argues against the fetus’s ability to sense pain.
Another influential review of scientific research published in the Journal of the American Medical Association in 2005 concluded that the capacity to perceive pain arises around 29 to 30 weeks, after the development of strong nerve pathways from the thalamus to the cortex.
The Doctors on Fetal Pain website rejects the conclusions of both the JAMA review and the British report. Both reports “were produced by strong abortion advocates,” making them unreliable, the site contends.
Use of anaesthesia
Of the estimated 1.2 million U.S. abortions each year, about 1.5 percent occur after 21 weeks of pregnancy, according to the Guttmacher Institute, a nonprofit that tracks sexual and reproductive health.
A central argument in the fetal-pain debate centers on the use of anaesthesia by fetal surgeons. “Doctors who operate on unborn children and do the operation in utero, they know that baby can feel pain,” said Tobias, with the National Right to Life Committee. “That’s why they anesthetize the baby to keep the baby from feeling pain.”
Fetal surgery, which is used to treat birth defects in fetuses, is a relatively new branch of medicine.
Opinions on fetal pain vary widely among physicians who work with fetal medicine, said Dr. Steffan Brown, a University of New Mexico Hospital physician completing a fellowship in maternal-fetal medicine.
“I know there’s a lot of controversy over when, and whether, the fetus can feel pain,” he said. “Probably the truth is unknown, so we need to be humble about it.”
Brown said he favors passage of the proposed ordinance, because he wants to end late-term abortions in New Mexico.
“I think something needs to be done to curb late-term abortions in New Mexico, and that stems from my own personal beliefs” and his work with women who have regretted their decision to obtain a late-term abortion, he said.
The Albuquerque ballot measure contends fetal surgeons use anaesthesia to prevent the fetus “from engaging in vigorous movement in reaction to invasive surgery.”
In the JAMA report, the authors said general anesthesia of the mother is most commonly used in fetal surgery because it stabilizes the uterus and immobilizes the fetus. Fetuses may also receive injections of painkillers to help immobilize them, the report said.
Brown, who performs minimally invasive procedures with fetuses at UNMH, said he uses painkillers on both mothers and fetuses to improve outcomes.
“Clearly, giving pain medicine changes the way the fetus reacts, so we regularly give fetal analgesia to keep the fetus comfortable during procedures,” Brown said.
Timing of tests
Another issue at the heart of the debate is the timing of tests administered to women to determine the health of mother and baby.
Many women 16 to 22 weeks into pregnancy undergo an amniocentesis, which allows physicians to diagnose genetic abnormalities in the fetus.
An amniocentesis removes a small amount of amniotic fluid from the womb, allowing doctors to diagnose Down syndrome, Fragile X and other genetic disorders.
Women may also receive a high-resolution ultrasound test 18 to 22 weeks into pregnancy to search for evidence of birth defects.
Penn said genetic testing may require weeks to complete, in which time a pregnant woman may exceed the 20-week limit called for in the ordinance.
For some women, pregnancy can also worsen health problems, such as diabetes and heart disease, Penn said.
The proposed ordinance allows an abortion after 20 weeks of pregnancy only if “the abortion is necessary to save the life of a pregnant woman,” including a physical condition caused by the pregnancy itself, “but not including psychological or emotional conditions.”
“It’s vague,” Penn said of the language. The ordinance would create dilemmas for physicians who may not know whether a pregnant woman’s health condition is life-threatening.
Ultimately, the ordinance would deny a woman the choice that she believes would protect her or her family from harm, Penn said.
“Something has gone incredibly wrong that makes her feel the need to (seek an abortion) in consult with her doctor,” Penn said. “Who are any of us to take that decision away from her?”
Penn said the ordinance also leaves uncertain whether a doctor could remove a dead fetus, which can remain in the woman’s womb for days after it dies.
Several supporters of the ordinance said that the measure would not apply in the event a fetus dies in the womb. “If the fetus is already dead, it’s not considered an abortion,” Brown said.
Brown also said physicians are often confronted with difficult decisions in the care of patients. “Medicine is an art, and things aren’t always clear and straightforward,” he said. “But in general, there’s a relatively short list of physical conditions where the woman’s life is clearly threatened by the pregnancy itself.”
Brown also said several good tests are available for women in the first trimester that can signal the likelihood of genetic illnesses in a fetus. But an amniocentesis is the only test available later in pregnancy that can provide a yes-or-no answer to the question of genetic defect, he said.
If a mother sought early genetic testing, followed by an amniocentesis at 16 or 17 weeks, “that would not preclude an abortion for genetic reasons,” Brown said.
He agreed that, under the proposed ordinance, if a woman waits until after 20 weeks to obtain an amniocentesis and it confirmed a serious genetic condition, she would be prohibited from obtaining an abortion in Albuquerque.
A woman’s options at that point would either be adoption or perinatal hospital, which provides comfort care to a severely ill fetus or newborn in lieu of heroic life-saving measures, Brown said. “Perinatal hospice is without question is a heart-wrenching process,” he said.