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Abortion law

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." (4)

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 an abortion.

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.

Fetal Pain

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 pain."

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 (27).

Whither abortion?

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. Frederiksen:

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 pain.
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 painful death…
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 lost.


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 procedure."

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.


(1) www.waronchoice.com

(2) This booklet is available from: www.naral.org

(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 the plaintiffs):

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 question, Doctor.
A. No, Mr. Hut, I usually do not do so.
Q. Why not?
A. …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; 344: 77-81.

(14) The Following is an edited exchange between Dr. Anand and Shawn Lane, attorney for the defendant:

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 feel pain.
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: 840-843.

(18) Derbyshire SWG. Exploring the pain "neuromatrix." Current Review of Pain 2000; 6: 467-477.

(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, 2002.

(23) The Following is an edited exchange between Dr. Anand and Ms. Wigmore, attorney for the plaintiff:

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?
A. [Yes].

(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. Westhoff:

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 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 procedure.
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 D&E?
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 is?
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 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 described it.
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 description.
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 for patients.
THE COURT: Can they fully comprehend unless you do? Not all of these mothers are Rhodes scholars or highly educated, are they?
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; yes.
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 discussion.
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 viability.

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