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Late abortion and fetal pain

Wherever an upper limit for abortion is placed, many people believe that the late- term fetus is worthy of a serious amount of moral consideration. Abortions that are regarded as ‘late-term’ continue to be especially contested in abortion law and ethics. Those generally opposed to abortion rights reserve a special horror and moral opprobrium for abortions carried out late in pregnancy. And those that are generally in favour of abortion rights often still express some measure of discomfort about them.!5 These attitudes are intelligible on the view that greater moral respect for late fetuses is appropriate in virtue of their human embodiment. Late-term fetuses are not merely closer to becoming persons, they share far more of our form of embodiment than do early ones.

Focusing on this shared embodiment can, I think, illuminate much of what is unsettling about aborting very developed fetuses regardless of their status as persons, or, even, of their capacity for pain experience. Concern about fetal pain

!5 ‘Late’ is obviously a relative term, and in the context of the abortion debate an evaluative one too, for it is usually taken to denote the time from which abortion is considerably sobering, even if still justifiable. While there is therefore some disagreement as to what ‘late’ here really means, I will take it largely to mean late second to third trimester abortions when the fetus is at least twenty weeks gestated.

during late abortion was a key focus of the US Congress’s reasoning when passing the Partial-Birth Abortion Ban Act 2003, which prohibited the controversial ‘dilation and extraction’ abortion method. The text of the 2003 Act set out the congressional ‘findings’ that:

It is a medical fact ... that unborn infants at this [‘late’] stage can feel pain when subjected to painful stimuli and that their perception of this pain is even more intense than that of newborn infants and older children when subjected to the same stimuli.

Thus, during a partial-birth abortion procedure, the child will fully experience the pain associated with piercing his or her skull and sucking out his or her brain.[1] [2] [3]

Contrary to the congressional findings, medical and scientific opinion is in fact quite agnostic about fetal capacity for pain experienced7 Disagreement about fetal pain stems from the fact that pain is not just a physiological response to stimuli, but also a subjective psychological experience. According to some psychologists, pain experience cannot be directly inferred from the presence of sensory pathways or stress hormones (purely physical pain responses) alone, because the contents of that subjective experience require more than travelling neurons; they require self-consciousness. I®

But the divisiveness of late abortion does not, I think, only have to do with the possibility of fetal pain. For one, it is unlikely that those who focus so much effort on the eradication of late abortion would be altogether placated by legal requirements to anesthetize fetuses, or to kill them painlessly with a heart-stopping lethal injection ahead of performing the abortion. Late abortion is especially troubling to many because when they look at developed fetuses, they see babies. Once appreciating this, we might understand why the partial-birth abortion procedure is so widely reviled irrespective of the question of fetal pain. Dilation and extraction involves the sort of attack on the body of a fetus that if directed at a baby, anaesthetized or not, would be horrifying. The anatomical closeness of the two makes it difficult to retain the horror reaction in the case of the baby but not of the fetus which shares so much of its form of embodiment. It is an exacerbating factor that the aggressive part of the procedure is carried out when the fetus is already in the process of emerging from the womb, or what would constitute that process, were it not killed before it fully emerges. There is an attitudinal difficulty with identifying neonates as fully within the range of persons from the time that they are born—which, I have argued, we have very good reason to do—whilst remaining wholly indifferent to very late-term fetuses.

If being embodied in the world is a precondition for personhood, partial-birth abortion is also a special case because it takes place right on the borderline: between the fetus occupying the isolated world of the womb and the world of fellow human beings. The dilation and extraction method destroys the fetus as it enters our world, just as it begins to gain its individual embodiment. If this separate embodiment is no ‘merely extrinsic’ development, as I have suggested it is not, then the location of the partial-birth procedure right on the line between womb and world will reasonably add to our consternation about it.

Partial-birth abortion might also be thought to threaten the clarity of birth as the threshold for legal personhood because it demands a sharper legal definition of where that borderline lies. Has the baby been born once the head has passed, the head and the shoulders, or not until it has emerged past the naval? Jeff McMahan criticizes the Partial-Birth Abortion Ban Act for its ‘absurd’ exactitude on this matter.[4] The Act prohibits the killing of a fetus once ‘the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother’. The absurdity, McMahan thinks, lies in the fact that ‘if an 8th of an inch less of the abdomen is exposed, the act of killing is constitutionally protected’.[5] [6]

If partial-birth procedures are to be regulated, this level of exactitude cannot easily be avoided. As we have seen, it is not a legitimate criticism of any abortion law that it stipulates a threshold which cannot be morally distinguished from the closest neighbouring points. This is an unavoidable feature of any legal threshold. Moreover, the ability to follow a law banning abortion procedures that take place partly outside of the womb may well depend on a high level of exactness about what constitutes such a procedure.

Still, a law stipulated too precisely may lack effective guiding force. It is easier to follow the rule that human beings are absolutely protected from birth than a rule which stipulates how many inches of human body must emerge before that protection is in force, still less a law which stipulates down to the centimetres or millimetres. And the later in the process of emergence that threshold is placed, the less unequivocal we may think the law’s endorsement of birth as the benchmark for personhood is able to be. Considering this, the law could have further reason to express disapproval for the partial-birth method and a preference for less borderline alternatives, notwithstanding the fact that such alternatives may involve no less violent an attack on the body of the fetus.21

There is more to think about, however, when it comes to the question of outlawing the partial-birth method. This includes the fact that the method can often be the medically safer option for women undergoing late abortion, and the fact that where other late abortion procedures are not banned, the prohibition of the partial-birth procedure is not in the interests of preserving fetal life.22 Ruth Bader Ginsburg regarded this second consideration as persuasive when delivering her judgment in Gonzales v Carhart, the US Supreme Court decision that upheld the constitutionality of the Partial-Birth Abortion Ban Act 2003. In her dissenting opinion, it counted against the ban that while the extraction method could often be in the interests of preserving women’s health, banning the procedure was not in the interests of saving fetal life, since alternative methods of late abortion were still available. While the value in demonsrating moral respect for human embodiment is, on my account, a reason for the law to discourage or prohibit very late abortion procedures, that reason may yet be overridden by other considerations, particularly when the pregnant woman’s interest in obtaining an abortion is considerable, and what is gained through prohibition negligible.

  • [1] Partial Birth Abortion Ban Act 2003, s 2.
  • [2] In 2007, a House of Commons Select Committee set up to investigate scientific developmentsrelating to the Abortion Act concluded, after hearing a number of submissions, that ‘while the evidencesuggests that foetuses have physiological reactions to noxious stimuli, it does not indicate that pain isconsciously felt, especially not below the current upper gestational limit of abortion [24 weeks]’ (Houseof Commons Science and Technology Committee, 25).
  • [3] 1® See Stuart Derbyshire, ‘Can Fetuses Feel Pain?’ (2006) 332 British Medical Journal 909.
  • [4] Jeff McMahan, ‘Infanticide and Moral Consistency’ (2013) 39 Journal of Medical Ethics 273.
  • [5] ibid.
  • [6] In her dissenting judgment in Gonzales (the Supreme Court decision which upheld the constitutionality of the 2003 Act), Ruth Bader Ginsburg drew attention to the fact that the banned, extractionmethod of abortion was no less gruesome than the unbanned alternative for late abortion: dilation andevacuation, effectively by fetal dismemberment (Gonzales v Carhart 550 US 124 (2007)). Ginsburgclearly did not regard the fact that in the extraction method the fetus is killed in the transition from theuterus to the outside world as being of any significance.
 
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