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Navigating the Junk Science of Fetal Pain

March 13, 2013, was a significant day for abortion activists as a federal judge struck down an Idaho law banning abortions past 20 weeks. The ban had been put in place based on unfounded assertions that the fetus could feel pain beyond this point in a pregnancy.

In his 42-page decision, U.S. District Judge B. Lynn Winmill sided with Jennie L. McCormack and her attorney, Richard Hearn, declaring that the Idaho fetal pain law placed an undue burden on a woman’s right to access an abortion. The judge also chastised the Republican-dominated legislature, arguing that fetal protection efforts do not outweigh a women’s right to choose abortion.

Winmill’s decision in the case was significant because Idaho had joined Nebraska, which approved a similar measure in 2010, as well as seven other states that adopted fetal pain laws in 2011. That legislative session saw a proliferation of antiabortion bills in state legislatures across the country in an attempt to undermine the protections for abortion prior to fetal viability (usually between 24 and 26 weeks of pregnancy) in Roe v. Wade.

Hearn has said he is willing to take the case against fetal pain restrictions all the way to the Supreme Court. Such a trajectory for this challenge to fetal pain laws has the potential to remove these relatively new barriers to abortion access across the country: should the notion of “fetal pain” ultimately be debunked and declared a roadblock to abortion access by the Supreme Court, it would invalidate other similar laws in states around the country.

Many of these fetal pain bills are based on the “Pain-Capable Unborn Child Protection Act” template produced by the National Right to Life Committee. This template asserts that fetuses feel pain as early as 13 weeks and suggests that the possible presence of fetal pain should abrogate a woman’s constitutional right to abortion.

Despite the passage of several “pain capable” bills, the science behind fetal pain remains a footnote in the abortion debates. This is because antichoice lawmakers marshal so-called junk science to support claims of fetal pain to justify their bills that restrict access to abortion. The term “junk science” refers to spurious pseudoscience funded or written by special-interest lobbies who intend to distort public perceptions, particularly those involving public health risks.

Probably the most prominent example of junk science involves what Naomi Oreskes and Erik M. Conway call the “Tobacco Strategy,” which refers to the way that tobacco companies marshaled their own research “experts” (that were both bullied and bought) for judicial trials in the 1970s and 1980s that involved plaintiffs alleging serious health complications as a result of smoking cigarettes. The tobacco companies found that as long as they could present reasonably credible scientists to testify in suits alleging long-term physical harm from cigarettes, they would win lawsuits and avoid paying damages. Tobacco experts routinely testified that cancers, emphysema, heart attacks, and strokes were not prompted by cigarette smoking based on their own studies or cherry-picked data that argued against a causal link between smoking and negative health effects.

In both the case of cigarette smoking and fetal pain, the use of junk science demonstrates how credible, peer-reviewed scholarship is too often disregarded for pseudoscience that touts conservative values at the expense of empirical data. In these examples and in many more, junk science serves to manipulate public perceptions of the scientific process.

The junk science of fetal pain, for example, hinges almost exclusively on factsheets and testimony that cherry pick quotations about the development of neural pain receptors in the fetus, rather than on comprehensive scientific literature. The junk science used to support the case for fetal pain relies on tying together assertions about how the fetus has reflexive responses to noxious stimuli as the fetus develops, though clearly reflexive responses aren’t synonymous with the experience of pain.

In response to scientific discourse pertaining to the utility of fetal anesthesia during abortion procedures, many double-blind peer-reviewed studies have tackled both the assertion of fetal pain and the suggestion of anesthetics in neutralizing fetal pain. Consequently, comprehensive studies of fetal pain have concluded that fetuses do not feel pain at the 20-week mark. And the most exhaustive review of studies finds that claims of fetal pain are unsupported by peer-reviewed science. These studies suggest that while the neural pathways to experience pain begin forming around 23 weeks gestation, the pathways are not functional and cannot transmit the noxious stimuli to the brain before 29 or 30 weeks.

These studies also impugn other assertions by the junk science pushed by “fetal pain” lobbyists. In a review published in the Journal of the American Medical Association, or JAMA, for example, the authors suggest:

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.

The JAMA authors conclude:

Because pain perception probably does not function before the third trimester, discussions of fetal pain for abortions performed before the end of the second trimester should be noncompulsory. Fetal anesthesia or analgesia should not be recommended or routinely offered for abortion because current experimental techniques provide unknown fetal benefit and may increase risks for the woman.

In this, the most extensive scientific literature review on fetal pain, JAMA concludes that fetal pain is not present until the third trimester. Scientists concur that the fetus is suspended in a sleep-like coma until the third trimester. In the most well-regarded, peer-reviewed, double-blind periodicals in the United States and in the United Kingdom, the consensus is that fetal pain is a political construction rather than a scientific fact.

Given these conclusions in the review of fetal pain literature, the use of junk science in political debates about abortion access has three major implications.

First, this strategy undermines scientific integrity by hyping partial scientific information and drawing specious conclusions for partially documented data.

Second, it makes civil discourse impossible, since legislators using junk science reject the established criteria of scholarly peer review as a test of evidence. The scientific method establishes that hypotheses should be tested empirically and then replicated for a conclusion to be accurate. The idea of fetal pain, however, emerged politically to roll back abortion rights. Junk science has been used to justify the policy rather than allowing the scientific data on fetal development to drive legislation. Fetal pain advocates have put the cart before the horse, so to speak.

Finally, this junk science provides a means of cutting women out of the debates over abortion entirely by inventing new criteria for data under which to evaluate the “rights” of the fetus. By highlighting the potential of physical pain for the fetus, the term “fetal pain,” as a political device, serves to elevate concerns about the fetus over the civil rights of women. This move further alienates women from the political process by which their abortion rights are circumscribed.

With the Idaho decision, a spotlight is shining on the language and data used to frame the debate over abortion rights. A clearer understanding of the political motives in the creation of the term “fetal pain” helps us understand how junk science is used to advance nonscientific political outcomes in public policy.

Lisa M. Corrigan, Ph.D. is an assistant professor of communication and co-chair of the Gender Studies Program in the Fulbright College of Arts & Sciences at the University of Arkansas.

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