Can an unborn child feel pain?
That question will dominate the abortion debate in America for the next several years thanks to Gov. Dave Heineman of Nebraska. Last week, Heineman signed the Pain Capable Unborn Child Protection Act into law, banning abortions in Nebraska at and after 20 weeks based on growing scientific evidence that an unborn child at that age can feel pain.
The legislation was enacted as a defensive measure. After the murder of late-term abortionist George Tiller, a physician named LeRoy Carhart declared his intention to carry on Tiller's work at his Bellevue, Neb., clinic. State legislators did not want Nebraska to become the country's late-term abortion capital--so they voted 44-5 to stop him.
The new law will probably spark a Supreme Court showdown, because it directly challenges one of the key tenets of Roe v. Wade--that "viability" (the point at which an unborn child can survive outside the womb, generally held to be at 22 to 24 weeks) is the threshold at which states can ban abortion. In defending the law, Nebraska will ask the high court to take into account scientific research since Roe and push the legal threshold back further.
In 1973, when Roe was decided, it was believed that the nervous systems of even newborn babies were too immature to feel pain--so doctors generally did not provide anesthesia to infants before surgery. But 25 years ago, a young doctor at Oxford University named Kanwaljeet Anand noticed that babies coming to his neonatal intensive care unit from surgery suffered a massive stress response--indicating they had been through extreme pain. His research into this phenomenon shifted medical opinion, and today even the most premature newborns are given anesthesia to alleviate pain during surgery.
Anand--now a professor at the University of Arkansas and a pediatrician at the Arkansas Children's Hospital--continued his research into infant pain, which has led him to conclude that fetuses can feel pain at 20 weeks, and possibly as early as 17 weeks when a portion of the brain called the "subplate zone" is formed. Indeed, according to a New York Times Magazine story on Anand's research, a fetus's "immature physiology may well make it more sensitive to pain, not less: The body's mechanisms for inhibiting pain and making it more bearable do not become active until after birth."
Other medical experts share Anand's assessment. Jean Wright, executive director and vice president of operations for Children's Hospital and the Women's Health Institute at Memorial Health University Medical Center in Savannah, Ga., has testified before Congress that an "unborn fetus after 20 weeks of gestation, has all the prerequisite anatomy, physiology, hormones, neurotransmitters, and electrical current to 'close the loop' and create the conditions needed to perceive pain. In a fashion similar to explaining the electrical wiring to a new house, we would explain that the circuit is complete from skin to brain and back."
Not everyone in the medical community agrees. Just as there were skeptics about newborn pain a quarter-century ago, there are skeptics of fetal pain today--and these views will be aired as the legal battle unfolds. But regardless of the legal outcome, a national discussion on the topic of "fetal pain" can only help the pro-life movement.
A Gallup poll last year found that, for the first time, more Americans called themselves "pro-life" than "pro-choice" by a margin of 51 percent to 42 percent. In 1995, the numbers were more than reversed: Fifty-six percent of Americans said they were "pro-choice" and just 33 percent said they were "pro-life."
How did the pro-life position gain 18 percentage points in just 15 years? For one thing, scientific advances have allowed us to see inside the womb as never before. Once-experimental medical procedures, such as fetal surgery to repair spina bifida, have become increasingly common. And a 1999 photo of baby Samuel Armas, then at 21 weeks gestation, reaching out of his mother's womb and holding his doctor's finger touched millions of hearts around the world. People have been able to witness with their own eyes the humanity of the unborn child.
As this window into the womb was opening, the pro-choice movement was busy defending the gruesome practice of "partial birth" abortion. A ban on the practice was upheld by the Supreme Court in 2007. Now, thanks to the people of Nebraska, the national debate will shift to the topic of "fetal pain," which once again underscores the humanity of the unborn.
As this debate unfolds, science will continue to advance, allowing us to see--and save--babies at earlier and earlier periods of gestation. And the consensus will continue to grow that pre-born babies are indeed human beings, deserving of our love, our compassion and, most important, our protection.
Marc Thiessen is a visiting fellow at AEI.