Trent Franks, Abortion Bans, and the Fetal Pain Lie

See all our coverage of HR 1797 here.

Wednesday, an all-male panel of House Judiciary Committee members, led by Rep. Trent Franks (R-AZ), 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 Gynaecologists, 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 Obstetricians and Gynaecologists 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.

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  • jruwaldt

    Actually, Franks is from Arizona. Good article otherwise.

  • Arachne646

    Media don’t often do good science reporting–it’s not necessarily a conspiracy, it’s more likely incompetence.

  • Ella Warnock

    “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.”

    So what they’re saying here is that the fetus reacts to stimuli. We can’t be certain, observation notwithstanding, that what they feel is pain. I don’t think anyone has ever been able to remember being a fetus, so despite dressing this up as “science,” there’s simply no reason to believe that there is any pain. Born humans experience fully functional autonomic nervous systems (involuntary reaction to stimuli). Most people would also say that they don’t remember birth, either, a much more traumatic experience. The autonomic system in a fetus is not going to be as fully functional as an adult’s. The reaction to stimuli only proves that the fetus is involuntarily reacting, nothing more.

  • Just me

    At some point you have to say what is the difference in killing the child after it is born? I understand there are horrible, unfortunate reasons why abortions have to happen, sometimes it is an unnacceptable risk for the health or age of the mother, or rape or incest, and I can accept that, but honestly, what kind of idiot is pregnant for more than 3 months without knowing it?? People that stupid should not breed in the 1st place. Many people are willing to tolerate the morning after pill, or anything that takes place while the child is a zygote but when you keep pushing for later and later term abortions you are gonna get pushback, and rightfully so. There are people out there that are using this as their preferred method of birth control, they can’t be bothered with any of the 50 methods out there to prevent pregnancies.( maybe it is a blessing those people aren’t mothers) I was against ultrasounds being performed prior to abortions, but you know..honestly, if you have to see the ultrasound of your *baby* you really cant pretend your not doing what you are doing, right? You can’t rationalize that you rid yourself of parasitic cells when they happen to have fingers and toes and can suck their future thumb….At least that might have enough effect on you if there is any conscience in you, to not have it happen again, because after all, what you made was a mistake, but its a mistake that you are expecting another being to pay for with its life. That’s something you are going to have to live with on your heart for a long time, and because something doesn’t bother you now, doesn’t mean that it wont later when you are older, or get better sense. There are videos out there that show fetal pain, myself I will err on the side of caution..I had polyps burned off my cervix and was assured I would not feel a thing, that there are no nerve endings for pain there.. and felt every bit of it, so at this point there is a lot of things that doctors don’t know.

    • pitbullgirl1965

      There are people out there that are using this as their preferred method of birth control, they can’t be bothered with any of the 50 methods out there to prevent pregnancies.( maybe it is a blessing those people aren’t mothers)

      Abortion IS birth control. Why don’t you mind your own business? You’re so eager to force women to give birth against their will to punish them aren’t you?
      Do you see the pro choice side passing laws to force women to have abortions?

    • TheDingus

      “At some point you have to say what is the difference in killing the child after it is born?”

      The difference is as clear as crystal to people who aren’t willfully blind and stupid:

      After a child is born it is no longer INSIDE ANOTHER HUMAN BEING.

      Please tell me you really aren’t THAT stupid and blind.

    • JSB3

      People would not be forced to get late term abortions if there were not so many stupid restrictions and stigma against abortion in the first place. Often finances push women to wait, or having to travel out of state because the lack of facilites for them to go to. Most people who don’t want to be pregnant would more than likely seek earlier abortions if there were not so many hoops to jump through. Earlier abortions are safer for the woman seeking them. The later the abortion the more likely the complications. To use late term abortion as sole form of birth control is nuts. Late term abortions should be mainly used when something is wrong with the fetus or health of the woman! Women should not have to jump through these ridiculous legislative hoops of fire, just to get one! These are medical choices and women should have every right at any stage to make those choices with her doctor in private!