The Subcommittee on the Constitution of the U.S. House Judiciary Committee recently held a hearing on legislation that would ban abortions in the District of Columbia after 20 weeks fetal gestation, based on the ability of the fetus to experience pain at that point and beyond.
The legislation, “The District of Columbia Pain-Capable Unborn Child Protection Act,” H.R. 3803, is based on medical and scientific findings that the unborn child at 20 weeks and beyond is capable of feeling pain, and may even be more sensitive to pain at that point than newborns are.
Testifying at the hearing was Colleen Malloy, MD, an assistant professor, Division of Neonatology/ Department of Pediatrics, at the Northwestern University Feinberg School of Medicine.
“There is ample biologic, physiologic, hormonal, and behavioral evidence for fetal and neonatal pain,” Prof. Malloy told the committee. “In fact, by 20 weeks post-fertilization (22 weeks by LMP),[i] the fetal brain has the full complement of neurons that are present in adulthood.”
Under later questioning, Prof. Malloy confirmed that the ability of the fetus to feel pain was the “majority view” of those in the field of neonatology.
Not only does the 20-week-old fetus experience pain, but it may also experience it more intensely than those further along in development: “Moreover, the fetus and neonate born prior to term may have an even heightened sensation of pain compared to an infant more advanced in gestation,” Prof. Malloy told subcommittee members. “The idea that premature infants actually have greater pain sensitivity is supported by the fact that while pain transmitters in the spinal cord are abundant early on, pain-inhibiting transmitters are sparse until later.”
In addition to providing evidence of fetal pain, medical developments have improved the ability of the infant to survive outside the womb at earlier stages of development. “With advancements in neonatology and perinatal medicine, we have been able to push back the age at which a neonate can be resuscitated and resuscitated successfully,” Prof Malloy noted.
In other words, a fetus delivered as early as 20 weeks (22 LMP) can survive outside the womb, with medical assistance.
“[T]he difference between fetal and neonatal pain is simply the locale in which the pain occurs,” Prof. Malloy noted. “The receiver’s experience of the pain is the same. I could never imagine subjecting my tiny patients to horrific procedures such as those that involve limb detachment or cardiac injection.”
“Limb detachment” and “cardiac injection” are two of the most common abortion techniques.
The proposed legislation has an exemption to allow for abortion after 20 weeks if the life of the mother is threatened.
However, as another witness at the hearing testified, this is rarely the case. Dr. Byron Calhoun, a perinatolgist — i.e., a specialist in maternal-fetal medicine/high-risk pregnancies– told the subcommittee, “I have had to deliver patients prematurely and had babies die from prematurity, but never had to take the life of a fetus to save the mother’s life” (An article prepared by Dr. Calhoun for the Charlotte Lozier Institute examining perinatal hospice for unborns diagnosed with lethal abnormalities can be found on this website).
His view has been echoed by other perinatologists who have testified before Congress.
At a 1997 Congressional hearing on legislation to ban partial-birth abortion, Dr. Curtis Cook, also a perinatologist, addressed claims that abortion – in this instance, a partial-birth abortion – was necessary to protect a woman’s life and future fertility when her child was diagnosed with a fetal abnormality.
“These conditions do not threaten a woman over and above a normal pregnancy, and do not require the killing of the baby to preserve her health or future fertility,” Dr. Cook testified. He went on to further note, “In the even rarer case of a severe maternal medical condition requiring early delivery… medical induction suffices without threatening future fertility. Again, the killing of the fetus is not required, only separation from the mother.”[ii]
In closing her testimony, Prof Malloy declared that she had “no doubt that my premature neonatal patients feel and experience pain…I firmly believe, as the evidence shows, that the fetal pain experience is no less than the neonatal or adult pain experience. It may even be greater than that which you or I would experience from dismemberment or other physical injury.”
The scientific and medical evidence is clear. “Technology, imaging, and clinical neonatology enable us to know much more about fetal life than ever before. We now understand the fetus to be a developing, moving, interacting member of the human family who feels pain as we do,” Prof. Malloy said.
And given that clear evidence, Prof. Malloy could only conclude: “If we are to be a benevolent society, we are bound to protect the fetus. We should not tolerate the gruesome and painful procedures being performed on the smallest of our nation.”
Gene Tarne is a Senior Analyst at the Charlotte Lozier Institute.
[i] There are two methods for determining fetal age. As Prof. Malloy explained in her testimony:
“In neonatology, we describe the age of neonates in terms of the last menstrual period (LMP) dating system, which dates a pregnancy starting with day zero as the first day of the last menstrual period. However, the actual development in the womb is commonly referred to with post-fertilization dating. This bill utilizes the post-fertilization system of dating. These approaches are equally valid, as long as one remembers which dating system is being employed in any particular discussion. The LMP age is the post-fertilization age, plus two weeks. Thus, the cutoff point in this legislation is 20 weeks after fertilization, which would be 22 weeks in the LMP system. In today’s medical arena, we resuscitate patients at this age and are able to witness their ex-utero growth and development.”
[ii] Testimony before the U.S. Senate Judiciary Committee, March 11, 1997.