The Concept of 'Fetal Pain' Is Bullshit

The House of Representatives passed legislation Tuesday that would ban abortions after 20 weeks based on the false premise that nonviable fetuses are capable of feeling pain. The Pain-Capable Infant Protection Act won’t make it through the Democratic-led Senate, but its existence is still a massive anti-abortion victory because it’s trapped us in a nationwide debate that legitimizes the concept of “fetal pain” instead of flat-out dismissing it. Living, breathing women go through hell when they can’t get a legal abortion. That’s pain.

Thanks to dubious PR from Rep. Trent “Rare Rape” Franks and Rep. Michael “Masturbating Fetuses” Burgess, you’ve probably aware that the House passed the Pain-Capable Infant Protection Act on Tuesday by 228 to 196, a nearly party-line vote. Conservative politicians and pundits kept referencing Dr. Kermit Gosnell, the horror movie-worthy Philadelphia abortion provider who was charged with first-degree murder last month, as evidence that “pain-capable infants” (really nonviable fetuses) need protection, but the batshit pseudo-scientific basis behind the bill is nothing new.

Similar laws that restrict the time period during which women can obtain legal abortions have passed in a dozen states over the past few years, all of them based on the same disputed notion that a fetus can feel pain after 20 weeks and therefore deserves government protection. Most of them faced legal challenges, but as Mother Jones’ Kate Sheppard reported in 2011, that was the point, as it is now: to get the country comfortable with the concept of “fetal pain” so that — hopefully — the challenge might one day make it all the way to the Supreme Court.

Here are the facts: In most states, abortions are legal prior to fetal viability (up to 24 weeks) as per Roe v. Wade. Second-term abortions are rare, in part because only 23 percent of abortion providers offer abortions after 20 weeks of pregnancy; just 1.4 percent of abortions occur at 21 weeks or beyond. None of this has anything to do with “fetal pain,” but if we must bring it up, legitimate studies that are actually recognized by medical experts (Sheppard cites one from a pair of Harvard researchers) have found that there’s no conclusive evidence that fetuses can feel pain or are considered viable by 20 weeks.

There’s no evidence that nonviable fetal pain is a thing, but there’s TONS of evidence that full-grown women (so, not innocent unborn angels) who are denied abortions are majorly fucked; they’re three times as likely to end up below the federal poverty line two years later, to cite just one negative consequence. These women literally can’t afford new restrictions — they already have a hard enough time accessing reproductive care.

Anti-abortion advocates clearly don’t care about facts (or adult women). They care about establishing the concept that a fetus can feel pain and therefore deserves more rights than the mother. Antis co-opted the misleading term “pro-life,” and they’re trying to do the same with “pain.” But why should we privilege the life of a nonviable fetus over the pain of a fully-formed person?

By passing the Pain-Capable Infant Protection Act — with the full knowledge that it will never actually become law — Republican representatives have ranked make-believe suffering above real-life agony. Isn’t it odd that so many Republicans renounce universal health care and support pain-heavy practices like the death penalty and torture, yet care so much about imaginary pain? Republicans don’t really give a fuck about the pain of rape victims — the Pain-Capable Infant Protection Act includes a fun little provision that mandates rape victims can only get abortions after 20 weeks if they prove they reported the rape — and they don’t care about women like Beatriz in El Salvador, who would’ve almost certainly died if she was forced to give birth to the nonviable anencephalic fetus inside of her.

Sheppard references a Nebraskan woman whose water broke at 22 weeks; doctors said her fetus would die at birth, but couldn’t perform an abortion thanks to a recently enacted “fetal pain” law. “Instead, she had to wait to give birth, then watch for 15 agonizing minutes as her underdeveloped baby slowly slipped away—an experience Deaver described as ‘torture.'” Again: that’s pain.