Nebraska's Fetal Pain Law

If we’re gonna do this, let’s do it right, shall we? Why not start off with something nice and contentious, a real juicy issue, like, say… abortion? I’ll probably lose some friends tonight – especially those whom I’ve duped into believing that I am a staunch liberal ;] I may harbor many classically “liberal” views, but this ain’t one of ‘em.

First things first – let me clarify my general position on the issue. Abortion is absolutely wrong, all the time, in every circumstance, without exception. Utterly tragic as rape and incest are, they do not justify the murder of an innocent child. Life begins at conception. Conception means fertilization – the merging of egg and sperm. These foundational points are not arguable for me – I’ve thought them through and I stand firmly on them. I will add the disclaimer that I do not consider every individual who has ever had or considered an abortion to be a morally bankrupt person. Circumstances are powerful, and we are all human. I will, however, often challenge the morality of certain justifications and lines of reasoning employed by pro-choice advocates.

Now, on to the issue at hand. I’d like to address a recent legislative move by Nebraska Governor Dave Heineman – you may have heard the buzz, since the news is already two weeks old. Governor Heineman recently signed into law the “Pain Capable Unborn Child Protection Act”, which reduces the threshold for legal abortion to 20 weeks gestational age. The change comes in response to mounting scientific evidence suggesting that unborn fetuses may develop the capacity for sensing pain as early as 17 weeks. The legislation was enacted as a defensive measure when Dr. LeRoy Carhart, friend and colleague of the murdered late-term abortionist Dr. George Tiller, vowed to carry on Tiller’s work in his Nebraska clinic. In an attempt to avoid becoming “the country’s late-term abortion capital”, the Nebraska legislature voted 44-5 in favor of the Act.

Pro-choice activists have already leapt at the collective throat of the Nebraska legislature with accusations of ideological agenda-pushing, and claims that the science is shaky at best. Of course, they do have good reason to rally the troops and put on their defensive hats – the Act challenges the very foundation of Roe v. Wade, in that it shifts the criteria for establishing legislative guidelines from viability (the point at which a fetus can survive outside the womb) to the ability to feel pain. Viability is not a set point determined by law – though 22-24 weeks is the generally accepted threshold range, the final determination is left up to the discretion of individual physicians. The ability to feel pain on the other hand, being so heavily dependent upon scientific inquiry into the complex neural circuitry of the developing fetus, really requires a mutually agreed upon set point in order to be practically applied as a criterion.

This shift signals not only the lowering of a long-standing threshold for legal abortion, but also the enforcement of a true absolute. Absolutes, unfortunately, are no friends of the pro-choice movement. Being a future physician myself doesn’t disconnect me from the reality that there may exist a pro-choice OB/GYN or two that will fudge the limit in the absence of an absolute, “for the benefit of the patient” of course ;]

The pro-choicers also bemoan the bill’s failure to include an exception for the risk of injury to the mental or psychological health of the mother. [Stunned pause]. Seriously?! Now making a woman cry is sufficient justification for infanticide? I suppose we should start seeking the death penalty for every mean kid who pushes a little girl down on the playground. I jest, of course, but talk about avoiding absolutes – that’s about as broad a grey area as I can imagine. Just how “upset” do you have to appear, as an expectant mother, to qualify for a later-term abortion on these grounds? Allow me let you in on the real bottom line here: What really upsets the pro-choicers is the fact that this omission leaves no loop hole for murdering handicapped babies beyond 20 weeks. If the expectant mother’s psychological fortitude is just so fragile that it couldn’t possibly withstand the hassle of dealing with a disabled child, shouldn’t she have the right to spare herself the trouble? Ugh. And here we meet our true foe in the abortion debate – moral relativism. I can’t even make an argument for the INSANITY of the statement that I just made, because doing so would assume a common moral compass that just doesn’t exist anymore. The concept that a woman’s “psychological health” should trump a baby’s right to life is just about as morally bankrupt as the Holocaust. You may disagree, but there’s just no way to truly argue that point in itself. We are at an impasse, my friend.

The truest danger of this piece of legislation lies in the fact that it broaches the subject of fetal rights in a big way, and comes down on the side of the child. It not only introduces the concept of fetal pain, but it also assumes that an entity that feels pain should have a right to be spared of that pain. It humanizes the fetus in a way that seriously endangers the core of the pro-choice platform – namely that a fetus is not in fact a life that is due any rights or protection.

It’s easy to draw arbitrary lines in the sand concerning the definition of “life”. The very fact that these lines are broadly defined (i.e. “22 to 24” weeks for viability), to me, highlights their arbitrariness. If it could be 22 or 24, then maybe it could be 21, or maybe 20 and a half… how far does it go? Or for others who define life at implantation, what makes it any less “alive” the previous day? ARBITRARY DEFINITIONS.

The definition of life as “viability” also begs the question, should what constitutes “life” be defined by the limits of technology? There was a time when 28 weeks was the lower limit of realistic viability for premature babies, but technological advances have brought us to 22 weeks. 50 years from now, when that limit is even lower, will 18-week-old fetuses suddenly be more “alive” than they are today? Should our ability to sustain life outside the womb determine whether or not an entity is in fact “alive” inside the womb? The idea that something is somehow less alive within the confines of an amniotic sac than outside it just boggles my mind in and of itself. If we had to somehow technologically “breathe life” into the fetus as it emerged, I’d understand. But it already has “life” – our technologies only sustain what it already has, in the case that its organ systems are underdeveloped. If the ability of certain organ systems to sustain life is what defines life, then God help the poor patients on transplant lists.

And as for the science (check out my follow-up post on the science), I’ll leave you to search PubMed for “fetal pain” and observe the “dearth of scientific evidence to back up the fetal pain issue” that the pro-choicers claim. Please. Of particular note is a review article by famed veteran fetal pain researcher and pediatrician Dr. Kanwaljeet Anand, one of the giants of the field: http://www.nrlc.org/abortion/fetal_Pain/AnandPainReport.pdf. The science is there. I’m sure that there are lots of researchers who make opposing claims (News flash: MOST of what you hear on the news about “scientific breakthroughs” is still heavily contested within its field – the media simply relies on the fact that most of us are either too lazy or too busy to look into it), but that doesn’t erase the work of Dr. Anand and many others. And I for one am just fine with erring on the side of caution in the case of causing pain to innocent unborn children – if there’s any indication that the last sensation an aborted baby feels is agonizing pain, we as a society ought to proceed carefully in how we handle that information. To ignore it, again, would be about as morally bankrupt as the Holocaust.

For more information, feel free to consult a few of my sources:

http://www.washingtonpost.com/wp-dyn/content/article/2010/04/19/AR2010041902082.html

http://blog.newsweek.com/blogs/thegaggle/archive/2010/04/13/newly-passed-fetal-pain-bill-in-nebraska-is-a-big-deal.aspx

http://www.healthbeatblog.com/2010/04/nebraskas-fetal-pain-abortion-law-ideology-not-science.html