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The Journal of the American Medical Association Says Fetuses Under 28 Weeks Do Not Feel Pain: The Legal Implications for Mandatory Information Sessions


Wednesday, Sep. 07, 2005

Recently, the Journal of the American Medical Association (JAMA) published an article concluding that a developing fetus does not experience pain prior to 28 weeks of gestation. The study may prove significant not only for pregnant women considering whether and when to terminate a pregnancy, but also for the law.

Before publication of this study, Senator Sam Brownback of Kansas sponsored a bill, known as the "Fetal Pain Awareness Act," which would require abortion providers to discuss fetal pain with their patients after 20 weeks of pregnancy and offer to administer fetal anesthesia. Based on the new scientific findings, such counseling would seem completely inappropriate.

But what about after the 28th week? Is it then acceptable to mandate such counseling and the offering of fetal anesthesia?

Quite apart from the empirical findings outlined in JAMA, the article's appearance provides a useful occasion for public discussion of the question whether the law should ever mandate the exposure of women seeking an abortion to information about fetal pain.

Implications of the JAMA Findings for Fetal Pain Awareness Act

If one finds persuasive the findings negating fetal pain in the first two trimesters of pregnancy, JAMA's announcement has obvious implications for the Fetal Pain Awareness Act. If the fetus does not experience pain prior to 28 weeks gestation, it would plainly be improper for the law to require health care providers to tell their abortion patients otherwise.

Providing material misinformation to patients considering a procedure is medical malpractice, and the law has no business demanding such malpractice of the nation's physicians. (Sadly, even without a federal mandate, there is plenty of medical malpractice to go around). Offering fetal anesthesia to such women would be equally inappropriate, for similar reasons, as it could expose patients to unnecessary risks with no benefit to anyone.

An interesting question that the JAMA article does not answer, however, is whether it is ever appropriate to require that health providers tell abortion patients about fetal pain. That is, if an abortion does take place after a fetus has become capable of suffering, should doctors be required to tell women of that fact?

Those who favor the bill in question say yes.

Someone who opposes the right to terminate a pregnancy would, almost by definition, wish to do whatever he or she legally can to make it more difficult for women to obtain an abortion. Like a mandatory waiting period, an information session that includes discussion of an unborn child's suffering during abortion is likely to discourage a woman considering the procedure from going through with it. Furthermore, if she does decide to terminate her pregnancy notwithstanding what she has learned, the discussion could contribute to the emotional distress she might feel after having done so, a desirable effect if one is of the view that abortion ought to be criminal.

It is, not surprisingly, precisely these anticipated consequences of the Fetal Pain Awareness Act that opponents would cite as reasons to oppose it. If women have the right to abortion, then the law should not burden them with compelled information sessions that serve to discourage them from carrying out their plans, or that contribute to the anxiety accompanying the choice.

Is that a sound argument? The answer may depend in part on why one thinks the law does, or ought to, recognize the right to abortion.

Why The Law Protects Abortion

Some would protect abortion on the theory that until an individual human is born, he, she, or it does not count as a person entitled to rights.

If one accepts this premise, then it would seem to follow that a pregnant woman should be allowed to terminate the life of the non-person in her body at any time in gestation. Indeed, the question would be no more difficult than that of whether the law should permit a couple to refuse to donate its extra frozen embryos to another couple (which, of course, it does). Until birth, then, the embryo or fetus is a kind of property that the woman can decide to keep, donate, or destroy, as she wishes.

On such an approach, the notion of compelling doctors to tell women about fetal pain would seem preposterous. The only person present with the doctor is the woman, and it is only if she wants information about the property she holds within her body, that the doctor should be providing that information.

A second account of the abortion right, however, is the very different idea that no person should be forced to sustain another living creature with her body. The experience of pregnancy, on this view, is far too intimate and demanding for the law to mandate it of women, particularly when no similar physical altruism is generally required of men, who can choose not to donate blood or organs to relatives (or others) in need.

Far from demanding blood and organs from its citizenry, moreover, the law in this country protects even a dead person from compulsory organ donation. And this is true notwithstanding the fact that such organs - which will otherwise decompose in a graveyard or go up in flame -- could be used to save and preserve many lives.

When bodily integrity is so (perhaps excessively) prized, it must not give way just because it is the bodies of pregnant women at issue. If it does, then the law engages in invidious discrimination against women.

Unlike the first, this second account of the right to abortion does not take a position on the question of when life begins, or whether or not the fetus is (or at some point becomes) a person holding rights and entitlements. Even a person, it maintains, does not have the right to inhabit another person or demand blood or organs from him.

Because this second account of why abortion is legal does not denigrate the status of embryos or fetuses, it might accordingly allow for women's exposure to facts about abortion that could bear on the moral significance of the procedure. It allows - though it does not require - the belief that the fetus is a person, and the corresponding view that women should be informed of the consequences of their abortion to what is really a third-party.

If continuing a pregnancy is in fact an act of kindness, and abortion an act of cruelty toward another person (albeit a legal act of cruelty), then a woman making a decision about how to proceed should perhaps know what she is (or is not) doing in taking the next step.

Are Information Sessions Insulting to Women?

There is a common response to the argument that women should know what they are choosing to do, even if no one has the right to stop them. It is that this argument assumes that women do not consider the moral implications of abortion before proceeding. Such an assumption might seem quite insulting to women. But it need not be.

Most of us are probably ignorant about the degree to which a fetus at a particular stage of gestation experiences sensations. It is no insult to recognize this fact, and to provide information that might bear on the decision that a woman will make.

By the same token, many women considering abortion might find comforting the newly published data about fetal suffering; they help to dispel some of the misinformation propagated by various actors within the pro-life movement. And learning of the data might cause women to schedule - and doctors to provide - abortions timed to avoid fetal pain, thus lessening some of the guilt or other trauma that could follow an abortion.

An Equal Right To Remain Ignorant

But there is a second, more compelling, response to the argument that women should know the moral consequences of what they do. It has more to do with equality than with (potentially inaccurate) claims about what women already know, and therefore need not be told.

That second response is this: Even with respect to facts that we might consider morally relevant to our decisions, most of us can avoid information that we prefer not to know.

Suppose you go to the doctor and ask about donating blood. The doctor will probably tell you that if you give blood regularly, then with virtually no risk to your own health, you can save several lives every couple of months. In spite of chronic blood shortages, however, the law does not require doctors to tell us this information. Thus, those of us who simply dislike needles can move through our lives blissfully ignorant about the numbers of people who need us for their very survival and whose deaths can accordingly be attributed to our squeamishness.

The same is true when it comes to donating our organs after we die. We no longer need them at that point, and people who are suffering from organ failure do. Yet we can choose to turn away from that information, and consequently leave others to suffer painful, horrible, and unnecessary deaths, just as surely as if we were to leave them drowning in a swimming pool, when we could easily have rescued them.

To give one further example, people choose to remain happily unaware of the suffering inflicted on animals killed for consumption. Most people know in their gut that if they were to read about or pay a visit to a slaughterhouse, what they learned would likely induce feelings of guilt about the decision to continue eating meat. So they don't pay such a visit (or its internet equivalent); they shield themselves from unwelcome revelations - again, remaining blissfully ignorant. Society, moreover, permits the ignorance to flourish and does not, for instance, require that every package of meat feature graphic photos of animal suffering that would more fully inform the choice to consume animal flesh.

We tell ourselves that animal's lives are relatively good prior to slaughter and that their deaths are quick and painless. Yet, as a general matter, nothing could be further from the truth. Animals are kept in inhumane conditions of crowding and disease, and their deaths are generally terrifying and excruciatingly painful. But waiters are not required to tell us any of this when they read us their specials of the day. A person can feast on suckling pigs and baby calves without giving their suffering or terror a second thought.

For purposes of terminating a pregnancy, then, we might ask whether women contemplating an abortion should be forced to confront the moral implications of their course of conduct, when others who cause pain and death - of other people, by declining to donate blood and organs, or of other sentient creatures, by consuming meat -- are not required to do so.

In answering this question, we might decide that no one should have the right to choose ignorance, and that the government ought to be telling people about the consequences of refusing to donate blood, refusing to sign the "donate organs" line on their driver's licenses, making the choice to consume the flesh of animals, and choosing to terminate a pregnancy.

Though such an approach would be internally consistent, it is far from the position that society currently takes. The fact that only the last of these - the one that affects women alone -- might be subject to mandatory disclosure says a lot about gender equality.

We might, on the other hand, decide that the government is ill-suited to select which information is most relevant to the moral choices that people - men and women --in a free society must make. If we take that view, then the government should not be forcing anyone to confront unpleasant information about their actions.

It is also clear that given the meat lobby's power over government, it is unlikely that the law would ever compel disclosure of the facts about animal cruelty to consumers of dead animals.

The government is, thus, far from a neutral arbiter of facts that its citizenry needs to act wisely and justly in the world. When the government gives us morals information, it usually does so for a reason: Because it wants to have an influence on our ultimate decision. Similarly, the government's failure to offer pertinent facts indicates that it likes or is at least complacent about the kinds of decisions that are already being made, given the information readily available and known to most, if not all.

Given that reality, it may be best to embrace a general freedom to avoid government-mandated information sessions. Such freedom may ultimately amount to a right to reject the majority's selection of which facts a person ought to consider material to the significant moral choices that every one of us must make at some point in our lives. In a country with public libraries featuring Internet terminals for all, it has never been easier to inform ourselves. We delegate this responsibility to the government at our peril.

Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her columns on criminal law and procedure, among other subjects, may be found in the archive of her work on this site.

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