Last week, Utah passed a fairly dystopian law requiring that women seeking an abortion after 20 weeks must be given anesthesia "to eliminate or alleviate organic pain to the unborn child." It will take effect later this month, despite the objections of numerous Utah doctors who warn that it is vague, potentially dangerous, and unscientific.
While this disturbing development is new, the idea of using fetal pain as a justification for limiting women's abortion access is not. According to the Guttmacher Institute, since 2010, 17 states have passed laws banning abortion after a certain point—either 18 or 20 weeks post-fertilization—citing a fetus's ability to feel pain at that stage. (In three states—Arizona, Georgia, and Idaho—those laws have been blocked from taking effect due to court action.)
Twelve other states require doctors to provide women with materials that insist a fetus can feel pain either 18 or 20 weeks. Elizabeth Nash, the senior state issues associate at Guttmacher, calls this a "spurious notion": A 2005 study published in the Journal of the American Medical Association found that "a fetus' neurological pathways that allow for the 'conscious perception of pain' do not function until after 28 weeks gestation." According to John A. Roberts from the University of Texas Law School, "[e]xpert committees in the United States and Great Britain have agreed that the fetus is not pain-capable until 26 weeks or later," although debate persists to this day.
"The idea [of fetal pain at or before 20 weeks] is simply being used to limit abortion," Nash said in a phone interview with Broadly. She noted that most of the nearly 300 abortion restrictions passed in the last five years tend to fall into one of two camps: "One way is to say, 'Oh, we're trying to protect the health of the woman,'" she said. "The other is all about elevating the status of the fetus. In a way, those are in conflict with each other."
Conservative legislators cite women's health as a justification for laws that strictly regulate abortion clinics, requiring them to make expensive renovations and obtain admitting privileges at local hospitals. This sort of legislation, referred to as Targeted Regulation of Abortion Providers, or TRAP laws, has forced hundreds of clinics across the country to shutter and effectively required women to travel long distances, incurring significant expenses, in order to terminate unwanted pregnancies.
Other laws, like 20-week abortion bans and personhood bills, focus on the fetus's rights instead. However, in a 2006 paper entitled "The Rights of 'Unborn Children' and the Value of Pregnant Women," Howard Minkoff and Lynn M. Paltrow argue that laws that purport to protect fetuses often blatantly infringe on women's basic human rights. "Often... expansions of fetal rights have been purchased through the diminution of pregnant women's rights." In 2013, Paltrow co-authored a comprehensive study supporting this conclusion—she found that hundreds of pregnant women have had their civil rights violated in the past three decades in the interests of "protecting the fetus."
[These legislators'] goal is to ban abortion, and they use whatever language and tactics they can.
The newly passed Utah law is unique—it's the first state to require fetal anesthesia—and it's also particularly troubling, as it poses a legitimate safety concern for pregnant women seeking abortions. Nash noted that the law offers no guidance to doctors on what is meant by anesthesia or how it should be administered to women.
"You're asking me to invent a procedure that doesn't have any research to back it up," Dr. Leah Torres, an ob-gyn who works in Utah, told the New York Times. "You want me to experiment on my patients."
"That is sort of taking a U-turn on thinking about women's health. If you're adding additional anesthesia, you're adding an additional risk," said Nash, noting that this will likely prevent doctors from performing abortions after 20 weeks—meaning the law will effectively function as a 20-week abortion ban. "[These legislators'] goal is to ban abortion, and they use whatever language and tactics they can."
As Minkoff and Paltrow pointed out nearly a decade ago, the legislative obsession with preserving fetal health is strange, especially considering the fact that America is a country with a comparatively poor record when it comes to protecting maternal health and well-being: The US is the only developed country in the world that offers no paid maternity leave to new mothers; it's also one of only two developed countries in which the maternal mortality rate is climbing. (The other is Greece.)
"While support for fetal rights is now de rigueur among politicians, there is apparently no similar mandate to address the social issues that truly threaten pregnant women and victimize their fetuses," Minkoff and Paltrow write. "Although states increasingly are seeking ways to arrest and punish women... no means have been found to guarantee paid maternity leave or proffer more than quite limited employment protections from discrimination for women when they are pregnant."
The effect, they argue, is a society in which mothers are "beatified in words and vilified in deeds."