The fetal pain debate
By Dr Stuart Derbyshire, Assistant Professor of Radiology
and Anesthesiology University of Pittsburgh Medical Center
With George Bush now returned to the White House many pro-choice
activists fear that legislative interference into a woman's
ability to obtain an abortion is set to increase. Planned
Parenthood Federation of America, for example, has declared
the Bush victory "disastrous for reproductive rights
and health" and Planned Parenthood president Gloria Feldt
has described an "all-out assault on women and our reproductive
freedoms" by Congress, the courts and the Bush Administration
(1). Meanwhile, the National Abortion and Reproductive Rights
Action League (NARAL) have put out a booklet, "The price
of four more years: Eliminating the right to choose and eroding
real choices" (2). As the title suggests, the booklet
predicts a possible end to legal abortion most likely via
a Supreme Court challenge to the 1973 Roe v Wade ruling.
This ruling declared most State laws, which then prohibited
access to abortion, to be unconstitutional. The Court's decision
prevented all legislative interference in abortion during
the first trimester, and allowed restrictions during the second
trimester only to protect the health of the woman. In the
third trimester, after viability, a state could create legal
barriers to abortion, provided it made exceptions to preserve
the life and health of the woman seeking abortion. There is
considerable concern that if Bush successfully nominates pro-life
Justices, to replace three Justices expected to soon retire,
then this landmark ruling could be overturned.
Regardless of what might happen
in the future, however, there are recent and ongoing legislative
attempts at restricting abortion. In April 2004, for example,
I was asked by Planned Parenthood to testify before the Virginia
State Senate on the question of fetal pain (3). At that time
the Virginia Senate were considering a bill that would require
fetal analgesia for all abortion procedures performed after
3 months gestation. The Bill was based upon several incorrect
assumptions about the nature of pain and the development of
the fetus, which was the basis of my testimony, as described
later in this article. The Bill also assumed, however, that
the Virginia Senate could and should make medical decisions
that were previously the remit of medical professionals. Much
of the physician testimony provided on the same day expressed
concern at the outside interference into decisions that sometimes
required specific judgments based upon many years of medical
training. Regardless of whether the fetus feels pain or not
the use of an analgesic is a medical, not a political, decision
and should be provided based upon the judgment of doctors
and not senators.
Efforts to legislate medical
procedure associated with abortion had already been made by
Congress and are ongoing to date. Led by Congressional Republicans,
pro-lifers have focused on a particular method of abortion
as described by Dr. Martin Haskell at a National Abortion
Foundation seminar in 1992. The technique, later called "partial-birth
abortion" by opponents and Congress, involves the physician
delivering all but the head of the fetus from the womb, piercing
the skull, suctioning out the brain, and then completing the
delivery. The U.S. House of Representatives and the U.S. Senate
have considered several bills intended to make so-called "partial-birth"
abortions illegal. After debates, bills were passed on two
occasions with large majorities, but both bills were vetoed
by President Bill Clinton (in April 1996 and October 1997)
on the grounds that they did not include health exceptions
and undermined the freedom of doctors' to use their best medical
judgement. Subsequent Congressional attempts at overriding
the vetos were unsuccessful.
Clinton recognized that doctors
needed to be free to use their medical judgement and enact
whatever procedures they felt were justified by the clinical
imperatives in front of them rather than according to legal
imperatives decided by Congress. With the election of George
W. Bush in November of 2000, however, this principle was finally
abandoned. On October 2, 2003, with a vote of 281-142, the
House again approved the Partial-Birth Abortion Ban Act (HR
760). Through this legislation, a doctor could face up to
two years in prison and face civil lawsuits for performing
such an abortion. On October 21, 2003, the United States Senate
passed the same bill by a vote of 64-34, with a number of
Democrats joining in support.
On November 5, 2003, President
Bush signed into law the Partial-Birth Abortion Ban Act, marking
direct political and legislative action to criminalize an
accepted medical procedure. The Act prohibited abortions performed
anywhere in the United States according to the following definition:
"[A]n abortion in which
the person performing the abortion (A) deliberately and intentionally
vaginally delivers a living fetus until, in the case of a
head-first presentation, the entire fetal head is outside
the body of the mother, or, in the case of a breech presentation,
any part of the fetal trunk past the navel is outside the
body of the mother, for the purpose of performing an overt
act that the person knows will kill the partially delivered
fetus; and (B) performs the overt act, other than completion
of delivery, that kills the partially delivered living fetus."
Violation of the act carried
a penalty of not more than two years imprisonment and/or a
fine of not more than $250,000. The Act permitted the above
procedures to save the life of the mother but did not include
an exception to protect the health of the mother. Consequently,
the National Abortion Federation in New York, Planned Parenthood
in California and a team of physicians led by Dr. Leroy Carhart
(5) in Nebraska all filed injunctions to prevent implementation
of the Act. The Act was challenged on the grounds that the
US Constitution requires an exemption to permit the procedure
when it is necessary to preserve maternal health; that the
Act further imposed an undue burden on a woman's right to
choose an abortion; the Act was unconstitutionally vague;
the Act failed to serve any legitimate state interest; the
life exception was constitutionally insufficient; and the
Act violated women's right to equal protection of the law.
Parallel trials were held
by Courts in the Northern District of California, the District
of Nebraska and the Southern District of New York to challenge
the constitutionality of the Act, naming John Ashcroft as
the defendant and temporarily restraining enforcement of the
Act. Each trial began in March of this year and judgment was
issued in June (California), August (New York) and September
(Nebraska). As each trial essentially considered the exact
same material, this article will focus predominantly on the
trial in New York.
Three major questions were
addressed during the course of each trial: 1) whether the
definition of partial-birth abortion also threatened the legality
of other abortion procedures, particularly the procedure of
Dismemberment and Extraction (D&E - and also known as
dilatation and evacuation); 2) whether the use of intact Dilation
and Extraction (intact D&X also known as partial-birth
abortion) provides a benefit or detriment to the health of
the woman; and 3) whether the fetus might be able to experience
pain during an intact D&X.
Methods of abortion in
the United States
Abortions early in the first
trimester (typically up to 9 weeks) can be induced by administration
of medications that induce uterine contractions such as mifepristone,
(formerly known as RU486) followed 36 to 48 hours later by
a prostaglandin. Alternatively, and also when the gestation
is longer (up to around 14 weeks) a physician may use suction
curettage (vacuum aspiration) to terminate the pregnancy.
During this procedure, the physician dilates the cervix until
it is wide enough to allow the insertion of a suction tube
into the uterus to evacuate its contents.
After about 14 weeks, abortion
is either by medical induction or dilatation and evacuation
(D&E). In medical induction, cervical dilatation and uterine
contractions are induced with drugs. There are several effective
regimens. All involve the administration of a prostaglandin,
such as misoprostol, and sometimes the action of the prostaglandin
may be enhanced by the preliminary administration of mifepristone.
The induction procedure is traumatic both for the pregnant
woman, who must expel the fetus through her vagina, and for
the attending staff. Consequently it is not the procedure
of choice for most American abortion providers. In practice,
D&E accounts for approximately 95% of second-trimester
abortions in the United States.
In a D&E procedure, the
physician first dilates and softens the woman's cervix so
that the contents of the uterus can be removed with minimal
risk of injury to the woman. Laminaria sticks, made of the
dried stems of seaweed, are placed in the cervix to absorb
moisture from the woman's body so that they slowly expand
and open the cervix. Cervical ripening agents, such as misoprostol,
may be used in conjunction with the laminaria. This process
of cervical preparation takes from 12 to 48 hours and the
woman can usually leave the hospital or clinic during this
time. When she returns, she is placed under general anaesthesia
or local anaesthesia with conscious sedation while the physician
performs the actual abortion.
Special narrow forceps are
inserted into the uterine cavity through the now open cervix
and are used to dismember the fetus and to remove it and the
placenta in fragments. The process takes several minutes,
depending on the size of the fetus. Ultrasound can be used
to guide the forceps and to check that the uterus is completely
empty. The fetal parts are counted as the D&E proceeds
(or are collected and counted at the end) to ensure that the
entire fetus has been removed. Suction is used to complete
the evacuation of the placenta and any remaining fetal tissue.
There is a small risk of serious injury to the uterus that
may require immediate abdominal surgery. This occurs in only
about 2 per 1000 abortions by D&E.
It is not standard procedure
in the United States to perform feticide prior to the D&E
although this is routine before medical induction after about
20 to 22 weeks to ensure that the fetus is dead when expelled.
Feticide involves an ultrasonically guided injection of potassium
chloride or of digoxin into the fetal heart. Those physicians
who were questioned in court about feticide before D&E
said that they did not consider the procedure to be necessary
to protect the health of the woman and, that it involved additional
risk of injury and psychological trauma for the woman (6).
It was revealed, for example, that digoxin can cause nausea
and vomiting, does not lessen the pain experienced by the
woman, and does not reduce the length of the abortion procedure.
Thus the fetus is usually alive when the evacuation process
begins and dies during the procedure.
The fetal parts are counted
as the D&E proceeds or are collected and counted at the
end to ensure that the entire fetus has been removed. A combination
of suction and instruments is used to complete the evacuation
of the placenta and any remaining fetal parts.
The procedure of intact dilatation
and extraction (intact D&X) was developed by Cincinnati
physician W. Martin Haskell in 1992 for second trimester abortion
up to 26 weeks. It is a modification of D&E but involves
the removal of an intact or nearly intact fetus from the uterus.
Preliminary preparation of the cervix must be greater than
with D&E as the opening must be large enough to allow
the free passage of the body of the fetus. This preparation
may take two or three days.
If the fetus presents in a
feet-first (breech) position, the physician grasps the fetus's
lower extremity with fingers or forceps and pulls the fetus
through the cervix and vagina until its head is lodged at
the cervical opening. At this point, the legs and torso of
the fetus are in the vagina, and the fetus remains alive.
With the fetal head lodged inside the cervix, the skull is
punctured so that it collapses as the soft brain tissue drains
away. The now dead fetus can then be extracted from the uterus.
If the fetus is presenting
head-first, the physician proceeds either by turning the fetus
into breech position or by collapsing the head while it is
in the uterus against the cervical opening. The extraction
of the fetus then proceeds as above.
It is not unreasonable to
view D&X as a D&E procedure in which the removal of
the fetus is completed in a single maneuver. This means that
with D&E there is a possibility that, when cervical preparation
has resulted in marked dilatation, the procedure might violate
the Partial-Birth Abortion Ban Act by resulting in the passage
of, "part of the fetal trunk past the navel" before
fetal demise has occurred. This possibility was the basis
of claims by the plaintiffs that the Act could outlaw the
most commonly performed second-trimester abortion procedure
and therefore be an undue burden on a woman's right to choose
Comparison of abortion
techniques and the "health exception"
Expert physicians testifying
both for the plaintiff and defendant agreed that both induction
and D&E procedures are safe and that the use of D&E
is generally safer than induction especially before 18 weeks
gestation. After 18 weeks there was some disagreement because
of the use of instruments in the uterus introduces the risk
of trauma, such as perforating the uterus, and this risk increases
with gestation. Nevertheless, the longer length of time necessary
to complete medical induction increases the risk of bleeding
and infection. There is also an increased risk of not properly
expelling the placenta. Furthermore, a number of witnesses
noted that D&E is generally less emotionally traumatic
for the patient and hospital staff when terminating a late
pregnancy. Medical induction requires a hospital stay, generally
in a delivery ward, whereas D&E can be performed on an
outpatient basis. Interestingly, Dr. Haskell has explained
elsewhere that he turned to D&E procedures because he
could not find a hospital willing to allow an induction procedure
past 18 weeks (7).
The comparative risks and
benefits of D&E and D&X were debated far more contentiously.
Those physicians in opposition to the ban generally argued
that D&E can introduce health risks that might be avoided
with a D&X. These risks include uterine perforation from
repeated insertions of the instruments, and the retention
of fetal tissue, particularly sharp bony fragments that risk
uterine perforation and infection. D&X also tends to be
quicker than D&E, which reduces the woman's exposure to
anesthesia. Experts for the government maintained that a properly
performed D&E should not pose any risk of uterine perforation
and countered that the greater dilation of the cervix and
the use of instruments to crush the fetal head in proximity
to the cervix may also lead to risk of uterine perforation.
They also pointed out that moving the fetus from a vertex
to breech position, which is sometimes done in preparation
for the D&X, can cause trauma to the uterus. Finally,
the greater dilation of the cervix necessary for a D&X
could result in an incompetent cervix and preterm delivery
of any future pregnancy.
Proponents of D&X suggested
other advantages of the procedure including potential benefits
for women with certain medical ailments, such as a bleeding
disorder, potential benefits in aborting fetus's with hydrocephaly
who have enlarged heads, the opportunity to examine an intact
placenta for diagnostic purposes and the opportunity to present
a potentially grieving woman with the largely intact body
of their baby. When a wanted pregnancy is being aborted, often
because of abnormality, the physician can arrange for a little
hat to be placed over the back of the fetal head and the body
be wrapped in a blanket for the parents to grieve. Small coffins
are also provided and a funereal service that feels like a
proper burial, as opposed to a disposal, is a perhaps surprising
benefit of D&X.
Ultimately, Judge Casey of
New York found in favour of the plaintiffs and overturned
the partial-birth abortion ban because the difference of opinion
amongst medical practitioners as to the health-benefits of
D&X means that a health exception must be included in
any ban. This was not the case with the Act, so the Act was
duly ruled as unconstitutional in New York and also in Nebraska
and California. The US Government is not permitted to legislate
in the face of medical uncertainty and this had already been
decided in a Supreme Court judgment (Stenberg v. Carhart)
against attempts of Nebraska to outlaw D&X procedures.
Judge Casey's decision, and
Judge Kopf's in Nebraska and Judge Hamilton's in California,
was essentially predetermined by the prior Supreme Court judgment.
As Casey stated in his summary, "While Congress and lower
courts may disagree with the Supreme Court's constitutional
decisions, that does not free them from their constitutional
duty to obey the Supreme Court's rulings." The Supreme
Court was engineered and designed to provide the ultimate
authority with regards to Constitutional issues and Casey,
as well as Congress, was thereby bound to its earlier decision.
Nevertheless, the trials will
have a lasting consequence because of multiple damaging testimonies
from Dr. Kanwaljeet (Sunny) Anand on the issue of fetal pain.
The potential for fetal pain was already becoming a common
part of the argument against abortion but it is now guaranteed
to form a more central role.
Anand made a series of seminal
discoveries during the late 1980s that led to a dramatic change
in the treatment of neonates undergoing surgical and other
types of care. Anand demonstrated that the major hormonal
response to invasive practice could be significantly reduced
when strong opioids, pain-killers, were added to the anesthetic
regimen (8). Accompanying these reductions in the hormonal
"stress response" to injury were dramatic improvements
in clinical outcome. Babies prepped for surgery with opioids
required less post-surgical ventilatory support and had reduced
circulatory or metabolic complications (8). Anand and his
colleagues advanced these impressive findings in a subsequent
report indicating that neonates receiving deep anaesthesia
during surgery had improved post-operative morbidity, they
survived more frequently, compared with those neonates who
received lighter anesthesia (9). An accompanying editorial
called on physicians to "Do the Right Thing" concluding
that 'it is our responsibility to treat pain in neonates and
infants as effectively as we do in other patients' (10). In
an earlier review for the New England Journal of Medicine,
however, Anand was more measured stating that: "None
of the data cited [in this review] tell us whether neonatal
nociceptive activity and associated responses are experienced
subjectively by the neonate as pain similar to that experienced
by older children and adults" (11).
Since that time, Anand has
moved further and further towards the view that neonates and
late-term fetuses do not merely respond to noxious events
but experience pain subjectively. Drawing on the research
of other investigators, notably Professor Fitzgerald of University
College London, Anand claims that the biological development
of the neonate and fetus (especially after 20 weeks gestation)
is sufficient to support an experience of pain. The group
led by Fisk and Glover at Queen Charlotte's Hospital in London
have also added to the evidence for a stress response to invasive
procedures in the fetus. These investigations will be reviewed
in brief (more extensive review can be found elsewhere) (12).
Although the analogy is limited,
it is reasonable to think of the pain system as being like
a fire alarm with injury activating a pain pathway (the "cable"),
which triggers a pain centre (the "alarm") somewhere
in the brain. Fetal skin contains free nerve endings (the
'alarm buttons') responsible for initial registration of noxious
stimulation, from about 7 weeks gestation. Projections from
the spinal cord (the 'electric cable') also reach the thalamus
(the lower 'alarm') of the brain at about 7 weeks gestation.
The very first projections from the thalamus towards the cortex
(the higher 'alarm') are apparent from about 12-16 weeks gestation.
Behavioral responses to touch
reflect the changing maturity of the fetal nervous system.
At 7.5 weeks gestation reflex responses to touch begin. At
this point touching the peri-oral region results in a bending
of the head. The palms of the hands become sensitive to stroking
at 10.5 weeks and the rest of the body and legs become sensitive
at approximately 13.5 weeks. Shortly after the development
of sensitivity, repeated skin stimulation results in hyperexcitability
and a generalized movement of all limbs. These generalized
movements give way to more refined and coordinated movements
after about 26 weeks gestation.
Further evidence suggesting
the maturity of the fetal pain system comes from a study of
the hormonal and neurochemical response of the fetus to noxious
stimulation. Giannakoulopoulos et al (1994) reported
that blood sampling at 20-34 weeks gestation via the intrahepatic
vein, which is innervated with free nerve endings, produced
an increased cortisol and opioid response compared with the
usual technique of taking blood from the placenta which is
not innervated (13). This is typical of a response to a noxious
stimulus that might be expected of someone in pain. Cortisol
release is known to prevent inflammation of a wound while
opioids act to suppress the flow of noxious information and
dampen pain experience. Moreover, the response is indicative
of a developed brain mechanism (the hypothalamic-pituitary
adrenal axis) for hormonal regulation.
It was this evidence that
enabled Anand to make the following claim during the course
of the trial in New York:
"I can state my opinion
to a degree of medical certainty that all fetuses beyond 20
weeks of gestational age will experience severe pain by the
partial-birth abortion procedure" (14).
The statement is pure hyperbole
and nonsense for many reasons. Firstly, while it is true that
the biology of the fetus has advanced considerably by 20 weeks
it is equally true that there is vast development still to
come. This development is critical to the ability to respond
to and process noxious information.
The layered appearance of
the thalamus, which is a sign of mature function, only begins
to appear at 20 weeks (15). And although projections from
the thalamus to the higher regions of the brain can be observed
from 12 weeks these projections are into the subplate of the
cortex (16). The subplate is a sort of "waiting compartment"
where fibers accumulate and develop before penetrating the
cortical plate developing above. The subplate 'dissolves'
during the prolonged growth and maturation of the cortical
plate. Similar to waiting in a theater lobby or making your
way through a car-park to a stadium, interactions within the
subplate are random and uncoordinated until direction towards
a seat is provided. The thalamic connections do not penetrate
the cortical plate, making it to their "seats",
until 26 weeks gestation.
From 28 weeks there is massive
relocation of subplate fibers into the cortical plate. The
cortical plate undergoes tremendous growth increasing in volume
by 50% between 29 weeks and term when the characteristic layers,
the "seat organization", of the cortex becomes apparent.
Obviously development continues
after birth, expressed fundamentally by the increasing size
of the human brain, but actual neuronal activity in the neonate
undergoes important maturation during the first year of life.
The neuronal function of the cerebral cortex, especially the
somatosensory cortex, the prefrontal cortex and the anterior
cingulate cortex, increase by a third from birth to 18 months
and these are brain regions that have been consistently associated
with pain experience (17, 18).
The most that can be said
of biological development in the 20 week fetus is that the
fetus has an incomplete 'pain alarm'. Although this alarm
allows for some defensive reactions it is highly unlikely
to allow for an experience of pain; incomplete alarms tend
not to ring.
Secondly, the suggestion of
a functional pain system during fetal gestation ignores important
differences between the womb and the outside world and ignores
the developmental impact of birth and subsequent life. The
environment of the womb consists of warmth, buoyancy and a
cushion of fluid to prevent tactile stimulation. The placenta
provides a chemical environment to encourage sleep and to
suppress higher cortical activation in the presence of any
intrusive outside stimulation. Inside the womb there is little
to be gained from alertness and motion, which can only cause
the expenditure of energy with little possibility of escape
or other advantage. In contrast to the buffered fetal environment,
the intense tactile stimulation of birth triggers behavioral
activity and wakefulness and marks the transition from laying
down brain tissue to also organizing that tissue with regards
to the world now rudely thrust upon it.
At birth and afterwards there
is massive increase in sensory input and this acts as a form
of "neuronal crowd control". Repeated sensory input
during this critical period of development results in generation
and stabilization of functional brain circuits as unused pathways
are eliminated. Changes in frontal cortex activity, for example,
come at a time when cognitively related behaviors, such as
the phenomenon of stranger anxiety and improvements in memory
begin to appear (19). Similarly the first coordinated motor
movements require the further development of specialized motor
regions of the brain. Gradual improvements in motor, visual,
spatial and sensory integration mark the disappearance of
reflex neonatal behaviors and the emergence of higher conscious
function, which will include pain.
Thirdly Anand ignores the
importance of psychological development for the ultimate conscious
experience of pain. When a primary care-giver points to a
spot and asks "does that hurt?" he or she is beginning
the process of enabling an internal discrimination and with
it experience. It is very difficult to imagine the undifferentiated
existence prior to any symbolic labeling, but it could be
like looking at a vast TV screen with the entire world's information
upon it from a distance of one-inch. With no means of making
the necessary discriminations all that will be observed is
a great buzzing mass of meaningless sound and color. Before
a symbolic system such as language, an individual will not
know that something in front of them is large or small, hot
or cold, red or green and so on.
Language does not give voice
to experiences already available and fully formed inside our
heads, it creates those subjective experiences by making the
quality of those experiences apparent to us, by giving them
a structure, by placing them within more abstract categories
of thought and by linking them to external reference and social
convention (20). Clearly our access to others' pain is mediated
through behavior and language but this is also true of our
own pain experience. Social development structures our behavior
and language so as to be meaningful to the outside world but
with the unnoticed side effect of rendering the child's inner
experience meaningful to him or her (21). While brain development
is certainly a necessary precursor of conscious sensory awareness,
merely peering inside the head will not reveal the source
of awareness (22).
This is why we can be so positive
that the fetus does not feel pain. Not only has the biological
development not yet occurred but also the post-birth environment,
so necessary to the development of experience, has not yet
made itself felt. In short, fetal pain is a moral blunder
based on the false equivalence between observer and observed
that misses the whole point and process of development. Anand
has made this mistake again and again and again and has now
done so to the detriment of women seeking abortion. Distressingly
these points were never made at trial and the Plaintiff's
might even have made the situation worse by pointing out that
if D&X is painful then D&E must be excruciating (23).
Moreover, in his concluding
decision, Judge Casey was able to state that Dr. Anand's testimony
went unrebutted by the Plaintiff's and provided "credible
evidence that D&X abortions subject fetuses to severe
While Anand has done much
to advance the clinical treatment of neonates and to preserve
early life he has also done much to confuse the understanding
of pain and has now damaged the credibility of medicine. His
testimony in California, Nebraska and New York, for which
he was paid $450 an hour, plus expenses, by the current US
Government was based on an evidently dubious and shaky claim
of "medical certainty" (14). It is understandable
and proper for physicians and medical experts to wield their
expertise in defense of practices that they believe to enhance
clinical care it is quite another to wield expertise against
clinical care and in defense of hypothetical and unproven
experiences. Unfortunately Anand has long interchanged what
he believes with what he can prove and now he has done this
in the service of reactionary political objectives.
Anand's testimony has spawned
the "Unborn Child Protection Act" which is a Congressional
sponsored attempt to curtail late abortion on the basis of
protecting the fetus from pain (24). Similar attempts to introduce
fetal pain legislation have already occurred at the State
level. Last year, for example, Minnesota successfully introduced
legislation requiring women to be informed of the possibility
of fetal pain when seeking a second-trimester termination
(25). The state of Virginia attempted to introduce similar
legislation earlier this year but the proposal was defeated
(26). Sponsors of the Unborn Child Protection Act have cited
Anand's testimony and those on the pro-life side of the debate
believe that this legislation will replace the Partial-Birth
Abortion Act as the main focus of anti-abortion activity,
especially now that George Bush has returned to the Whitehouse
Although the Partial-Birth
Abortion Act was struck down in each trial the debate that
occurred, and that which has followed, emphasize how marginalized
women's rights have become to the abortion debate. Judge Casey
in New York directed his attention routinely towards the fetus
leading to some bizarre exchanges such as this one with Dr.
THE COURT: Do you tell [the
woman] whether or not it will hurt the fetus?
THE WITNESS: The intent
of [the procedure is] that the fetus will die during the process
of uterine evacuation.
THE COURT: Ma'am, I
didn't ask you that
THE COURT: Do you tell
them whether or not that hurts the fetus?
THE WITNESS: I have
never talked to a fetus about whether or not they experience
THE COURT: I didn't
say that, Doctor. Do you tell the mother whether or not it
hurts the fetus?
THE WITNESS: In a discussion
of pain for the fetus it usually comes up in the context of
how the fetus will die. I make an analogy between what we
as human beings fear the most [ineligible] a long protracted
THE WITNESS: I feel
that fetus dies quickly and it's over quickly and I think
from a standpoint of a human being our desire is that we have
a quick death rather than a long protracted death.
THE COURT: That's very
interesting, Doctor but it's not what I asked you. I asked
you whether or not you tell them the fetus feels pain.
THE WITNESS: I don't
believe the fetus does feel pain at the gestational ages that
we do but I have no evidence to say one way or the other so
I can't answer that question.
This exchange, and several
others, indicate how the political landscape has moved (28).
The physicians work according to the principle that having
agreed a termination should take place, the management of
it must be in the interests of the woman who will have a life
to lead after the event. As Dr. Frederiksen pointedly observes,
the object of the procedure is for the fetus to die. The judge's
demand to take the "fetal-perspective" is perverse,
beside the point and wantonly dismissive of the woman's state
of mind. During several exchanges, Judge Casey asked whether
and how the physician described the process of tearing the
fetus apart, sucking out its brains and so on. The physicians
explained that they used less dramatic language because this
is a clinical procedure and the idea is to put the patient
at ease - not to terrify her and send her running, screaming
or sobbing, from the hospital (29).
The fetal-perspective, however,
is encouraged by the legalese defense of abortion in the second-trimester,
which is a battle ground far removed from the principle of
defending abortion as a means to protect women's autonomy.
This was brought home to me while I was preparing my testimony
in opposition to the Virginia Legislation (26). I was advised
by the lawyers working for the pro-choice cause not to argue
that the fetus does not feel pain past 26 weeks because it
really doesn't matter after 26 weeks as abortion is illegal
then anyway. The lack of access to third-trimester abortion
in the United States, however, matters a great deal. The failure
to defend abortion "as early as possible, as late as
necessary" as a matter of principle for the pregnant
woman can only encourage those who oppose abortion as a matter
of principle in defending fetal life.
President Bush grasps this
well when he correctly states that while he would prefer to
abolish abortion he doesn't believe that the American public
is ready to have Roe overturned in entirety. That is why Bush
uses rhetoric such as "supporting a culture of life"
and endorses legislation to create barriers against abortion
and to enhance the legal status of the fetus but shies away
from more severe restrictions on abortion access (30). The
pro-choice opposition attacks these legislative maneuvers
as a covert "war on choice" but fail to provide
an effective argument in favor of abortion (1). By not challenging
the public ambivalence over abortion, and even caving into
it, the pro-choice movement gives Bush a free hand to continue
to chip away at abortion. The somewhat exaggerated concern
that the Supreme Court may soon reverse Roe has purchase only
because the argument in favor of abortion is already being
In his concluding decision,
Judge Casey stated:
"The Court finds that
the testimony at trial and before Congress establishes that
D&X is a gruesome, brutal, barbaric, and uncivilized medical
There is no question that
both D&X and D&E are physically brutal procedures.
Even as someone fully committed to abortion access "as
late as necessary" the thought of dangling an alive and
healthy late-term fetus out of the womb before collapsing
its skull, or tearing it apart with forceps and fingers, causes
pause. But unwanted pregnancy, including unwanted late pregnancy,
is a fact of life. To deny women access to the abortions they
need to lead an independent life only swaps the brutality
of abortion for the brutality of denying women's autonomy
and forcing them to become mothers. A focus upon the physical
act of abortion maligns its higher purpose to allow women
the possibility of leading the life they want rather than
the life biology provides for them. As the Unborn Child Protection
Act makes its way through Congress and the Partial-Birth Abortion
Act makes its way to the Supreme Court it seems highly unlikely
that this principle will be heard.
(2) This booklet is available
(3) I gave evidence before
the Virginia State Senate March 4, 2004, against House Bill
1315 at the request of Ben Greenberg, Director of Government
Relations, Planned Parenthood Advocates of Virginia. I did
not receive any payment for this service. I also advised several
attorneys during the course of each partial-birth abortion
trial on an ad-hoc basis and without payment.
(4) Transcripts of each trial
and all the judgments can be found here:
(5) The other named plaintiffs
were Dr. William G. Fitzhugh, Dr. William H. Knorr, and Dr.
Jill L. Vibhakar.
(6) The following is an edited
exchange between Dr. Westhoff and attorney Stephen Hut (for
Q. Dr. Westhoff, do you make
it a practice either to effect fetal demise by using potassium
chloride, as we have heard about, or injecting [digoxin] into
the amniotic sac prior to the time that you effect a surgical
evacuation of the uterus?
THE COURT: Wasn't that a lot simpler? You may answer that
A. No, Mr. Hut, I usually do not do so.
Q. Why not?
the main reason that it is an additional procedure
that does not offer any benefit to the woman that I am taking
care of. The procedure itself is not trivial, it can be difficult
to accomplish, can fail, and has some risks. Those are the
main reasons I do not use this procedure.
(7) An interview with Dr.
Haskell reported in the Cincinnati Medicine, Fall 1993.
(8) Anand KJS, Sippel WG,
Aynsley-Green A. Randomised trial of fentanyl anasthesia in
preterm babies undergoing surgery: effects on the stress response.
Lancet 1987; 1: 243-248.
(9) Anand KJS, Hickey PR.
Halothane-morphine compared with high dose sufentanil for
anesthesia and postoperative analgesia in neonatal cardiac
surgery. New England Journal of Medicine 1992; 326: 1-9.
(10) Rogers MC. Do the right
thing: Pain relief in infants and children. New England Journal
of Medicine 1992; 326: 55-56.
(11) Anand KJS, Hickey PR.
Pain and its effects in the human neonate and fetus. New England
Journal of Medicine 1987; 317: 1321-1329.
(12) Derbyshire SWG. Locating
the beginnings of pain. Bioethics 1999; 13: 1-31.
(13) Giannakoulopoulos X,
Sepulveda W, Kourtis P, Glover V, Fisk NM. Fetal plasma cortisol
and -endorphin response to intrauterine needling. Lancet 1994;
(14) The Following is an edited
exchange between Dr. Anand and Shawn Lane, attorney for the
Q. Doctor, I would like to
turn to your opinion in this case, do you have an opinion
as to whether a fetus can feel pain?
A. Yes. Fetuses that are beyond 20 weeks of gestation can
Q. And what is the basis for your opinion?
A. My opinion is based on multiple lines of evidence looking
at the anatomical development of the pain system, the functional
correlates of the developing fetus, the physiological responses
of fetuses and their behavior. All of these areas contribute
to my opinion.
Q. Is your opinion to a reasonable degree of medical certainty?
A. Yes, it is.
And later under cross from
Ms. Wigmore, attorney for the Plaintiffs
Q. You offered the opinion
that a fetus would be subject to intense pain from the abortion
procedures described in the Partial-Birth Abortion Ban Act
of 2003. Do you recall that?
A. Yes, I do.
Q. You cannot state with a degree of certainty that all partial-birth
abortions will result in pain to the fetus, can you?
A. I can state my opinion to a degree of medical certainty
that all fetuses beyond 20 weeks of gestational age will experience
severe pain by the partial-birth abortion procedure.
Q. And you have an 80 percent degree of certainty about that
opinion, is that right?
A. 80 percent or greater, counsel.
Anand's remarkable ability
to precisely indicate his level of certainty regarding his
degree of uncertainty passed without further remark.
(15) Hevner RF. Development
of connections in the human visual system during fetal mid-gestation:
a DiI-tracing study. Journal of Neuropathology and Experimental
Neurology 2000; 59: 385-92.
(16) Ulfig N, Neudorfer F,
Bohl J. Transient structures of the human fetal brain: Subplate,
thalamic reticular complex, ganglionic eminence. Histology
and Histopathology 2000; 15: 771-790.
(17) Chugani HT, Phelps ME.
Maturational changes in cerebral function in infants determined
by 18FDG positron emission tomography. Science 1986; 231:
(18) Derbyshire SWG. Exploring
the pain "neuromatrix." Current Review of Pain 2000;
(19) Chugani HT. Biological
basis of emotions: Brain systems and brain development. Pediatrics
1998; 102: 1225-1229.
(20) Vygotsky LS. Mind in
Society: The development of higher psychological processes.
Harvard University Press, 1980.
(21) Malik K. Man, beast and
zombie: What science can and cannot tell us about human nature.
Rutgers, University Press, 2002.
(22) Hobson P. The cradle
of thought: Exploring the origins of human thinking. Macmillan,
(23) The Following is an edited
exchange between Dr. Anand and Ms. Wigmore, attorney for the
Q. I'm sorry to interrupt
you. Are you familiar with the dismemberment D&E?
A. I am familiar with it to the extent that I have read about
the procedure. I have not performed any of those procedures.
Q. In a dismemberment D&E, it is your opinion, isn't it,
that at 20 weeks of gestation a fetus undergoing that procedure
would experience severe pain?
A. That is correct.
Q. Isn't it true, Doctor, that assuming the same gestational
age, a D&E procedure involving dismemberment would be
more painful to a fetus than a D&X procedure?
A. That is possible, yes.
Q. It is possible or it is a fact?
A. It is possible [ineligible comment] I have to use my imagination
and speculate as to what is involved in a D&E procedure
as opposed to an intact D&E procedure or a D&X procedure
as you classify it.
Q. Having previously testified under oath that a D&E involving
dismemberment would be more painful to a fetus than a D&X
procedure at 20 [weeks]?
A. Could you refer me to the statement?
Q. Sure. Why don't we start with your [April 13, 2004] transcript,
which is also in the binder that I put before you. I want
to direct your attention to page 1081.
A. I have it.
Q. Do you have that page, Doctor? I want to call your attention
specifically to line 4, 1081 SRRB line 4. "Q. And in
fact isn't it true that it's your opinion that a fetus undergoing
a dismemberment procedure could experience greater pain as
a result of the fact that there is more somatic injury? "A.
That is correct, yes." Did you give that testimony, Doctor?
A. Yes, I did.
Q. If you could refer now to your deposition from this case,
page 118. I direct your attention to line 22 on that page...
I will read the question and answer again. "Q. Do you
have any opinion as to whether in a D&E procedure involving
dismemberment, whether that's more or less painful to a fetus
than one which is aborted using the D&X procedure? "A.
Not having performed these procedures myself, I would imagine
that the D&E procedure, because it is associated with
much greater somatic injury to the fetus, would cause more
pain than the D&X procedure." Did I read that correctly?
(24) Introduced May 20, 2004.
Senator Sam Brownback (R-Kansas) and Chris Smith (R-New Jersey)
are the bill's main sponsors:
(25) Minnesota Senate Bill
187 requires that at least 24 hours prior to an abortion,
the woman must receive a state-mandated lecture by the physician
or physician's agent, by telephone or in person, that must
include: (1) that medical assistance benefits may be available
for prenatal care, childbirth, and neonatal care; (2) that
the "father" is liable for child support even if
he has offered to pay for the abortion; and (3) that she has
a right to review state-prepared materials that describe the
"unborn child," list agencies that offer alternatives
to abortion, and contain information on "fetal pain."
(26) House Bill 1315 would
have required anesthesia to be administered to the fetus before
abortion after three months gestation. The bill was defeated
in the Senate Education and Health Committee on March 4 with
five members in support and nine members of the committee
voting against. I provided testimony against HB1315.
(27) New bill in Congress
requires abortion doctors to inform women of unborn's pain.
(28) Other witnesses faced
similar questioning such as the following exchange with Dr.
THE COURT: I take it, then,
the question of the infliction of pain to the fetus is not
on the top of your list of concerns when doing your work?
THE WITNESS: While I wish to avoid fetal pain, I have no desire
to inflict fetal pain, [at the] top of my list is the safety
of the woman who is undergoing the procedure.
And with Dr. Chasen
THE COURT: Do you ever discuss
with them whether or not in the D&E, the dismemberment,
when you tear limbs off, do they ask you, does it hurt?
THE WITNESS: Patients have asked about if --
THE COURT: What do you tell them?
THE WITNESS: I tell them that neither I nor anybody knows
for sure whether it does.
THE COURT: But that it might?
THE WITNESS: I share with them some observations. I tell them
I think to the extent that they receive a good degree of sedation
or general anesthesia, that I am confident that the fetus
also receives --
THE COURT: Some?
THE WITNESS: I share with them some observations that I make.
I would be happy to share it with you.
THE COURT: Do you tell them there are some studies that suggest
that fetuses do feel pain?
THE WITNESS: There are some authors of some studies who suggest
that fetuses do feel pain. There aren't any studies that directly
address the question.
THE COURT: Do you tell them that?
THE WITNESS: I tell them we don't know and we can't know for
sure whether the fetus feels pain. But I tell them that I
am confident based on my observations --
THE COURT: Having been a baby once?
THE WITNESS: I don't make reference to that.
Later to the same witness:
Q. You mentioned direct visualization.
What does that mean?
A. That means when the skull is obstructed at the level of
the cervix, at that point I place a clamp on the front part
of the cervix and, applying mild traction to this, it exposes
the skin at the back of the fetal neck at the site through
which I place the scissors. So I can in almost all cases actually
visualize the spot through which I place the scissors.
THE COURT: Does that hurt the baby?
THE WITNESS: I don't know.
THE COURT: Do you care?
THE WITNESS: That's not my main concern during the procedure.
THE COURT: Do you care?
THE WITNESS: I don't consider it at the time I'm doing the
THE COURT: Then I take it your answer is you don't care, if
you don't consider it.
THE WITNESS: I didn't say I don't consider it, but that is
far from my prime concern.
THE COURT: You just said you don't consider it. I am quoting
you, Doctor, back to you. You said you don't consider it,
and I responded to that does that mean, then, you don't care.
If you don't consider it, I don't see how you can care.
THE WITNESS: At the time I am doing the procedure, I am caring
for the woman. I don't care.
And to Dr. Clark
THE COURT: Do you believe
there is fetal pain?
THE WITNESS: Sure. If there is pain once --
THE COURT: Then you might have a difference to the fetus in
that case, would it not?
THE WITNESS: It might, but I --
THE COURT: If they could fee pain tearing the limbs off in
a D&E or sucking the brain out in a D&X?
THE WITNESS: It might, your Honor. I mean I -- whether I would
rather have my, something, a hole poked in my brain and sucked
out or pulled apart at the limb, I don't know if I can say.
THE COURT: When it is over it doesn't make any difference.
THE WITNESS: They both sound pretty brutal so I, as far as
I know the fetus, it doesn't have any long-term differences
to the fetus, how it's killed.
(29) There were several exchanges during the trial, usually
initiated by the judge, which centred upon the amount of detail
provided to the pregnant woman. The following are edited selections.
To Dr. Hammond:
THE COURT: Do you tell them what happens when they do an intact
THE WITNESS: If the patient --
THE COURT: The brain is sucked out?
THE WITNESS: Well I don't -- as a point of fact, your Honor,
I don't usually do the suction part. I do compress the calvarium
and I do some other procedures. I don't actually do suction
so I don't explain that part.
THE COURT: You don't explain that to them?
THE WITNESS: Well I explain the method.
THE COURT: You explain what a compression of the calvarium
THE WITNESS: Yes, sir; that I do explain.
THE COURT: That that's crushing the skull?
THE WITNESS: I explain that, yes.
To Dr. Johnson
THE COURT: When you have done
D&Es or when you have done abortions, do you tell the
woman various options that are available to her?
THE WITNESS: Yes, sir.
THE COURT: And do you explain what is involved like in D&E,
the dismemberment variation? Do you tell her that?
THE WITNESS: We would describe the procedure, yes.
THE COURT: So you tell her the arms and legs are pulled off.
I mean, that's what I want to know, do you tell her?
THE WITNESS: We tell her the baby, the fetus is dismembered
as part of the procedure, yes.
THE COURT: You are going to remove parts of her baby.
THE WITNESS: Correct.
THE COURT: When you describe the possibilities available to
a woman do you describe in detail what the intact D&E
or the partial birth abortion involves?
THE WITNESS: Since I don't do that procedure I wouldn't have
THE COURT: Did you ever participate with another doctor describing
it to a woman considering such an abortion?
THE WITNESS: Yes. And the description would be, I would think,
descriptive of what was going to be, what was going to happen;
THE COURT: Including sucking the brain out of the skull?
THE WITNESS: I don't think we would use those terms. I think
we would probably use a term like decompression of the skull
or reducing the contents of the skull.
THE COURT: Make it nice and palatable so that they wouldn't
understand what it's all about?
THE WITNESS: No. I think we want them to understand what it's
all about but it's -- I think it's -- I guess I would say
that whenever we describe medical procedures we try to do
it in a way that's not offensive or gruesome or overly graphic
THE COURT: Can they fully comprehend unless you do? Not all
of these mothers are Rhodes scholars or highly educated, are
THE WITNESS: No, that's true. But I'm also not exactly sure
what using terminology like sucking the brains out would --
THE COURT: That's what happens, doesn't it?
THE WITNESS: Well, in some situations that might happen. There
are different ways that an after-coming head could be dealt
with but that is one way of describing it.
THE COURT: Isn't that what actually happens? You do use a
suction device, right?
THE WITNESS: Well, there are physicians who do that procedure
who use a suction device to evacuate the intercranial contents;
THE COURT: It is so much nicer to say evacuate but now you
told me also, which I am trying to comprehend, that some women
prefer this procedure so that it helps in the grieving process
-- that they can hold this fetus that they have, just a short
while prior to this, ordered the physician to kill this baby
by this procedure?
THE WITNESS: Well, I was talking in the context of our, in
our, of our institution where most of these pregnancies are
desired pregnancies with multiple anomalies where the mother
has decided to terminate a desired pregnancy with a heart
defect or an abnormal brain or abnormal kidneys.
THE COURT: But they've also, since you say full disclosure,
they've also authorized you to kill this fetus by the procedure
described by you, at least two of them, dismemberment.
THE WITNESS: Or medical induction; that's right, sir. Yes.
THE COURT: Thanks, Doctor, very much. You may step down.
To Dr. Westhoff:
THE COURT: And when you discuss
the D&E, do you discuss dismemberment?
THE WITNESS: I tell them that my responsibility is to remove
the fetus and the other --
THE COURT: Doctor, that isn't my question. Do you discuss
dismemberment? Do you tell them about ripping or tearing a
limb off the fetus?
THE WITNESS: I may very often discuss that I remove the fetus
in pieces but that is not necessarily a uniform part of the
THE COURT: Well do you do it most of the time? I mean, do
they really understand what are you doing when you tell them
all these clinical terms?
THE WITNESS: I try to use everyday language and not use terms
that are going to be confusing to the patient. We try to --
THE COURT: Do any of them ask you whether or not the fetus
experiences pain when that limb is torn off?
THE COURT: Going back if I could with you a moment, Doctor,
to your discussion with patients who say all of them you try
and do an intact procedure?
THE WITNESS: Yes, your Honor.
THE COURT: Do you tell the mother that when you do that that
you get to that stage that part of the body, that the fetus
is outside her body you insert scissors in the base of the
skull and insert them into the brain of the fetus?
THE WITNESS: I have not used those particular details but
I do tell patients that my goal is to make the --
THE COURT: I'm not asking about goals, Doctor, I'm trying
to find out what you really tell the mother what you are going
to do when you do this procedure. I want to know whether that
woman knows that you are going to take a pair of scissors
and insert them into the base of the skull of her baby, of
her fetus. Do you tell her?
THE WITNESS: I do not usually tell patients specific details
of the operative approach. I'm completely --
THE COURT: Do you tell her that you are going to then, ultimately,
suck the brain out of the skull?
THE WITNESS: In all of our D&Es the head is collapsed
or crushed and the brains are definitely out of the skull
but those are --
THE COURT: Do you tell them that?
THE WITNESS: Those are details that would be distressing to
my patients and would not -- information about that is not
directly relevant to their safety.
THE COURT: Don't -- whether it's relative to their safety
or not don't you think it's since they're giving authorization
to you to do this act that they should know precisely what
you're going to do?
THE WITNESS: That's actually not the practice I have of discussing
surgical cases with patients.
THE COURT: I didn't ask you that. I said don't you think they
ought to know?
THE WITNESS: No, sir, I don't. That's not how I discuss C
Sections with patients, it's [not how] I discuss hysterectomy
[with my patients] and not how I discuss D&Es.
THE COURT: Next question.
(30) President Bush, for example,
signed into law the "Unborn Victims of Violence Act",
April 1, 2004, which allows for prosecution following acts
against a fetus (Scott Petersen has fallen foul of this law
and is currently awaiting sentencing for the murder of his
wife and their unborn child). This legislation follows other
successful efforts at curtailing abortion, including restricting
access to public monies and facilities for abortion, enforcing
abortion providers to inform the parents of minors scheduling
an abortion, and preventing second trimester abortion after