Trent Franks, Abortion Bans, and the Fetal Pain Lie

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RH Reality Check

Trent Franks, Abortion Bans, and the Fetal Pain Lie

Wednesday, an all-male panel of House Judiciary Committee members, led by Rep. Trent Franks (R-GA), passed a 20-week abortion ban. The bill, HR 1797, passed out of the Judiciary Committee by a vote of 20 to 12. The vote count fell along party lines, with the exception of Congressman Pedro Pierluisi (D-PR), the only Democrat who voted in favor.

House Speaker John Boehner (R-OH) has promised a floor vote on the bill next week.

This is a dangerous piece of legislation. It is based on false and completely disproven assertions about “evidence” of fetal pain; it makes legislators, rather than doctors, the arbiters of gestational age; and it would result in the trial and imprisonment of medical professionals who provide safe abortion care. Yet in what can only be called an irresponsible quest for what they call “balance,” many media outlets are assisting in the perpetuation of lies about a critical aspect of reproductive health care in support of policies that will deeply harm women and criminalize providers.

As currently written, Franks’ bill would create an absolute ban on abortions in the United States after 20 weeks post-fertilization, for any reason, under any circumstance, except the imminent risk of death of the pregnant person, which as the cases of Beatriz and Savita Halappanavar have shown is not exactly reassuring. Contrary to misreporting by the Washington Post and the Associated Press, it is not a “reaction” to the trial of Kermit Gosnell, but simply the newest iteration of a bill Franks has been pushing for years—and he is using the Gosnell case as an excuse to expand the bill from a focus “only” on the District of Columbia to a nationwide ban.

It is no secret that the GOP is out to ban all abortions in the United States, no matter the costs to women’s lives and health, nor the costs to families and society writ large. When they are not acting to ban abortions outright, legislatures controlled by the GOP and Tea Party are passing unnecessary and costly regulations intended to close clinics run by legitimate providers of safe abortion care, and creating hoops through which patients must jump to get safe abortion care intended to raise the costs of early abortion and to humiliate and shame women, plain and simple.

The GOP and anti-choice movement’s claims about “caring for women” are belied by the fact that passage of a bill that would create blanket restrictions on safe abortion care, would remove health-care decisions from the hands of doctors and the women who are their patients—and would guarantee that criminal actors such as Kermit Gosnell get plenty of business.

The ostensible premise of HR 1797—and others like it at the state level—is that a fetus at or past 20 weeks post-fertilization “feels pain.” This is an assertion that has been rejected by every relevant major medical body in the United States and abroad.

In the findings section of the bill, for example, the text asserts the following (condensed here):

After 20 weeks, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult human, for example, by recoiling. … In the unborn child, application of such painful stimuli is associated with significant increases in stress hormones known as the stress response. … Subjection to such painful stimuli is associated with long-term harmful neurodevelopmental effects, such as altered pain sensitivity and, possibly, emotional, behavioral, and learning disabilities later in life.

It further states (emphasis added):

The position, asserted by some medical experts, that the unborn child is incapable of experiencing pain until a point later in pregnancy than 20 weeks after fertilization predominately rests on the assumption that the ability to experience pain depends on the cerebral cortex and requires nerve connections between the thalamus and the cortex. However, recent medical research and analysis, especially since 2007, provides strong evidence for the conclusion that a functioning cortex is not necessary to experience pain.

The intention here is clearly to deceive.

The reference to “recent medical research and analysis, especially since 2007,” appears to refer to one commentary paper written by Anita Gupta and James Giordano, which, in supporting the contention of fetal pain, cites “seven studies” of various kinds, all of which were studies of rats, and the majority of which were studies of rats that had long since been born in any case. None of these were conducted for the explicit purposes implied by the paper. Needless to say, the relevance of these studies to human fetuses prior to the third trimester are questionable at best.

At the time of the publication, Gupta was listed as D.O., or doctor of osteopathic medicine. On her current “about” page on the Drexel University website, Gupta prominently associates herself with the university, but at the very bottom includes this note (emphasis in original): “This doctor is a non-compensated member of the teaching faculty of Drexel University College of Medicine; the associated clinical practice is independent of Drexel University College of Medicine.

Giordano is listed on the paper as a bioethicist on the faculty of Georgetown University; he is not a medical doctor.

The anti-choice movement also often cites as “research” claims from a website called “Doctors on Fetal Pain,” which states that there is a “wealth of anatomical, behavioral and physiological evidence” on fetal pain 20 weeks post-fertilization. The only problem is that this “wealth” of research does not seem to exist; on one page, every single one of the links to outside research is dead (and cannot be found elsewhere), and on another page on the site, references cited are not live-linked to any source, and many of these sources do not turn up in any searches.

By contrast, when Franks’ claims “some medical experts” dispute anti-choice assertions about fetal pain, it is referring to the American Medical Association, the American College of Obstetricians and Gynecologists, and the British Royal College of Obstetricians and Gynecologists, among others—in other words, actual doctors and researchers.

For instance, in a June 2012 statement opposing an earlier version of Franks’ bill, the American College of Obstetricians and Gynecologists said the following about fetal pain:

The American Congress of Obstetricians and Gynecologists (ACOG) opposes HR 3803, the District of
Columbia Pain-Capable Unborn Child Protection Act, and other legislative proposals that are not based
on sound science or that attempt to prescribe how physicians should care for their patients. … The medical profession produced a rigorous scientific review of the available evidence on fetal pain in
Journal of the American Medical Association (JAMA) in 2005. The review concluded that fetal
perception of pain is unlikely before the third trimester. No new studies since the publication of the
JAMA paper have changed this dominant view of the medical profession. Supporters of HR 3803 only present studies which support the claim of fetal pain prior to the third trimester. When weighed together with other available information, including the JAMA study, the supporters’ conclusion does not stand.

In a thorough review of evidence released in June 2010, the British Royal College of Obstetrician’s and Gynecologists stated the following:

The fetus cannot feel pain before 24 weeks because the connections in the fetal brain are not fully formed; Evidence examined by the Working Party showed that the fetus, while in the chemical environment of the womb, is in a state of induced sleep and is unconscious; and, because the 24 week-old fetus has no awareness nor can it feel pain, the use of analgesia is of no benefit.

And a 2010 article in New Scientist includes a Q&A in which Mark Rosen of the University of California, San Francisco, and co-author of the seminal 2005 review on fetal pain rebutted each one of the claims made in a fetal pain bill then under consideration by the Nebraska legislature.

Still, the AP fantastically pretends this is a “partisan disagreement.” In its story on the hearing, for example:

Bill sponsor Trent Franks, R-Ariz., and others argued that there is evidence — a contention Democrats say is unproven — that fetuses can feel pain after five months, justifying a ban on later abortions.

Actually, no. Democrats may be citing evidence, but it is from doctors and researchers—it is evidence that says fetal pain is non-existent. This is not partisan, this is scientific knowledge.

Meanwhile, the New York Times made no effort at all to dispel, with comments from researchers or physicians, the fallacious quotes included in its story from members of the committee.

In short, there is no evidence for the claims made in this legislation; the only evidence that does exist is that the GOP will go to any lengths necessary to prevent women from making the best decisions for themselves and their families in their own real-life circumstances, even when women’s lives are at risk—even when a fetus has no brain. It is important to ask: In what other area would the media be allowed to get away with parroting outright lies about medical findings based on a political party with a clear agenda?

This is a dangerous bill, and some major media outlets are helping make it more so.

Jodi Jacobson

Jodi L. Jacobson is a long-time leader in the health and development community and an advocate with extensive experience in public health, gender equity, human rights, environment and demographic issues. She is currently Editor-in-Chief of RH Reality Check.

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