H.R.36 Pain-Capable Unborn Child Protection Act co-sponsored by Rep. Hunter

H.R.36 Pain-Capable Unborn Child Protection Act co-sponsored by Rep. Hunter

Rep. Hunter is a co-sponsor to H.R.36 Pain-Capable Unborn Child Protection Act (https://www.congress.gov/bill/115th-congress/house-bill/36/cosponsors), which has as its under-riding premise that a fetus feels pain and must be protected from feeling pain. The obvious extension of this premise is that abortions cause pain and therefore cannot occur once a fetus begins to feel pain, which this bill states is at the 20th week and thus the bill bans abortions after the 20th week. At first glance many may not have an issue with this; after all shouldn’t a woman be able to decide during the first 19 weeks if she desires an abortion? Well, there are several problems with this argument and with the logic of the bill.

Point one: Language. A quick note on language… language is power and the right to name something is a claiming of power. The authors of this bill have determined that they have the right to claim that a fetus is not a fetus but rather an unborn child. In one fell swoop the notion of a fetus as being a child has been introduced, not debated and the road has been set to begin considering the constitutional rights, the personhood rights of a fetus.

The term fetus is and has been the accepted term within the field of medicine (a quick review of basic bio: in the early days of development the dividing cells are termed zygote & blastocyst; during the 5th – 8th week of development the term is an embryo, after which fetus is the term). The term fetus is not cold, derogatory, diminishing or negative it is simply the word that is given to the developing life form from the 8th week of pregnancy until birth. This bill touts that it is grounded in science, yet it uses the term fetus zero times and the term unborn child 41 times; since language is power and an abortion is a medical decision as well as a medical procedure, I will use the language set forth by science.

Point two: When does life start? This of course is a question with a multitude of right answers as it is rooted not just in science but in one’s religious, philosophical and existential beliefs. This is a powerful, important and awe-inspiring topic to ponder. I hope all Americans reflect on this and find their own answers.

As every school child learns, America is a nation based on the separation of church and state – there is not and never shall be an official religion of the United States of America. I believe the Supreme Court Justices that decided Roe v. Wade honored this by not addressing the issue of when life starts but by focusing on the question of when does a developing life become close enough to being its own life. Phrased another way, the Justices focused on when is the fetus capable of independence from the woman whose body is growing the life and they decided to use this timeline as the basis for America’s federal abortion law.

The Justices determined that as a fetus could not sustain independent life during the first and second trimesters (According to the American College of Obstetricians and Gynecologists (www.acog.org – FAQ 156, June 2015) the first trimester is until the 13th week of pregnancy and the second trimester is from the 14th week until the 27th week of pregnancy) abortions were legal throughout the land during the first trimester and legal during the second trimester unless the abortion could put the woman’s life at risk and the state wanted to put a restriction on the procedure (a quick note on the health risks of abortion, childbirth is statistically speaking more dangerous for a woman than an abortion http://health.usnews.com/health-news/family-health/womens-health/articles/2012/01/23/abortion-safer-for-women-than-childbirth-study-claims). Since a fetus could be capable of surviving (and with advances in the medical field, now is capable of surviving), thus of having life independent of the woman’s body, during the third trimester (from the 28th week until the 40th week of pregnancy/birth), states would be allowed to legislate abortion limits during the final trimester of pregnancy (long, complicated & confusing legal debates aside states have the bulk of the legal rights to determine legislation which impacts its residents, meaning that since a baby born during the third trimester could survive, it is now a resident of that state and thus the state gets to legislate abortion laws in the third trimester). (Info on Roe v. Wade: http://womenshistory.about.com/od/abortionuslegal/p/roe_v_wade.htm; https://www.plannedparenthood.org/files/3013/9611/5870/Abortion_Roe_History.pdf; if you are interested in how states have decided on third trimester abortions – this is an interesting link: http://www.nytimes.com/interactive/2013/06/18/us/politics/abortion-restrictions.html?_r=0).

Point three: With an understanding of the timeline for abortions that Roe v. Wade set out let us turn to this bill and decipher what this bill puts forth. H.R. 36 posits that, “It is the purpose of the Congress to assert a compelling governmental interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain” (https://www.congress.gov/bill/115th-congress/house-bill/36/cosponsors).  As noted, this bill argues that a fetus experiences pain at the 20th week and thus abortions should be banned at the 20th week.

It is interesting to note that the authors of this bill imply that Congress should so value life that even a developing life form in its nascent stages must be protected. Yet does Congress’ loyalty to a developing life override Congress’ interests in the well-being of an existing life? What of the woman who already exists, who already resides in our nation, who already is an integral part of our nation’s social and economic fabric? While I cannot speak for the authors of this bill, it is worth mentioning that the words unborn child occurs 41 times in this bill while the word woman occurs 20.

Point four: Does a fetus feel pain? Contrary to what the bill presents… a 2005 review of available science, reported in the Journal of the American Medical Association, found that perception of pain is unlikely before the third trimester, specifically around 27 to 28 weeks from conception (http://www.factcheck.org/2015/05/does-a-fetus-feel-pain-at-20-weeks/; http://jamanetwork.com/journals/jama/fullarticle/201429?resultClick=1 JAMA 2005; 294(8): 947-954). The American College of Obstetricians and Gynecologists also states that due to the anatomical development present in a fetus before the third trimester, the fetus cannot feel pain until the third trimester (http://www.cbsnews.com/news/do-fetuses-feel-pain-what-the-science-says/).

In addition, pain has a subjective quality to it – my level 2 on a pain scale is not the same as your level 2 and subjectivity requires consciousness. Current neurological understanding shows that consciousness, as an adult or child experiences it, is something that develops within an infant (see The Developing Mind by Daniel J. Siegel, M.D.). This then leaves the issue of reaction – if something reacts to a stimulus that we, as adults, would define as causing pain, then it seems one could argue that the entity experiencing the stimulus experiences pain – right? The problem with this is that even a one-celled organism will respond, even a crystal will respond to stimulus from its environment (https://www.nasa.gov/vision/universe/starsgalaxies/life%27s_working_definition.html).

Point five: So what are the exceptions? There are two categories of exceptions to this proposed abortion law. The first exception is if the woman’s life is in danger, but only if her physical existence is in danger, if the woman is in danger of psychological or emotional damage, there is no exception. So, if the woman is suicidal there is no exception, if carrying the fetus to term would damage the woman psychologically there is no exception. None.

The second category of exception has to do with rape or incest. Being the victim of rape or incest is not sufficient ground for an exception, rather 1) a woman must seek counseling for the rape, 48 hours before the abortion, and documentation of this counseling session must be provided as well as filed in the woman’s medical file and 2) the woman must provide documentation from a hospital or medical provider that she sought treatment for the rape or for an injury sustained from the assault. If the victim of rape or incest is a minor, then the assault must have been reported to law enforcement or the appropriate government authority, for example child protective services, in order for an exception to be granted.

There are a few major problems with this exception criteria, namely that 1) the majority of sexual assault does not get reported – according to RAINN 2 out of 3 sexual assaults go unreported (https://www.rainn.org/statistics/criminal-justice-system) and 2) there is no medical treatment for the physical act of rape. What happens when a woman goes to the hospital following sexual assault is that, if consented to, a rape kit is done which for many survivors of assault is an emotionally difficult experience. The purpose of the rape kit is to collect evidence should the case go to court (https://www.rainn.org/articles/rape-kit).

Point six: Since the bill diminishes a woman’s access to abortion, let’s look at some basic arguments against abortion. Two of the most common arguments against abortions are that 1) if abortions are legal they will be used as birth control and 2) if abortions were illegal they would not occur. Both assumptions are false.

Regarding the first argument: Since the early 1980s abortions have been steadily decreasing in frequency, with 2014 having the lowest number of abortions since Roe v. Wade (with the legalization of abortion it became possible to reliably track the occurrence of this procedure) (http://www.abort73.com/abortion_facts/us_abortion_statistics/, https://www.guttmacher.org/journals/psrh/2017/01/abortion-incidence-and-service-availability-united-states-2014, https://www.guttmacher.org/fact-sheet/induced-abortion-united-states).

And regarding the second argument: Abortions have occurred since ancient times, the first known writings regarding abortion come from the 3rd Millennium before Christ (http://civilliberty.about.com/od/abortion/f/When-Did-Abortion-Begin.htm) and will continue to exist until the end of time – this is just a fact of our species. The United Nations acknowledges this fact and has established access to legal abortion as a human right (http://www.ohchr.org/Documents/Issues/Women/WRGS/SexualHealth/INFO_Abortion_WEB.pdf).

Thus whether abortions are legal is solely a question about bringing a procedure out from the shadows. When abortions are illegal, they still occur and they occur in circumstances that put the woman’s health, her well-being and even her life into danger (https://prochoice.org/education-and-advocacy/about-abortion/history-of-abortion/, http://www.ourbodiesourselves.org/health-info/u-s-abortion-history/, http://www.feminist.com/resources/ourbodies/abortion.html).