On May 17, South Carolina’s legislature passed a bill to ban abortion after 19 weeks based on the false premise that fetuses can feel pain at 20 weeks post-fertilization. Armed with a wealth of anti-choice propaganda and right-wing media myths, Gov. Nikki Haley (R-SC) is likely to sign the “Pain-Capable Unborn Child Protection Act” into law with no exceptions for pregnancies that are the result of rape or incest.
Despite the wealth of scientific evidence to the contrary, assertions about fetal pain have framed right-wing media’s coverage of abortion and supplied talking points for anti-choice politicians to push medically unnecessary laws targeting abortion access. In March, Utah Gov. Gary Herbert (R-UT) invoked the idea of fetal pain to sign a dangerous bill requiring Utah doctors to administer anesthesia during abortions performed after 20 weeks. Although South Carolina’s bill does not mandate the use of anesthesia, it is based on the same disputed premise about fetal pain.
Samantha Allen explained in an article for the Daily Beast that by signing this bill, Gov. Haley not only would make South Carolina “the 17th state in the country to institute a 20-week abortion ban,” but she would “also be turning lies into law.” According to Allen, although the South Carolina bill states that “there is substantial medical evidence that an unborn child is capable of experiencing pain by twenty weeks after fertilization,” the majority of credible scientific evidence undermines this fallacious claim.
Anti-choice legislators claim in the South Carolina bill that fetal reactions to stimuli at 20 weeks post-fertilization prove that the fetuses are capable of feeling pain. In particular, they claim research shows that “a functioning cortex is not necessary to experience pain.” There is little evidence to support this claim, or other claims of fetal pain prior to 24 weeks of development.
As Allen explained, the so-called science behind anti-choice legislators’ claims contradicts “the current medical consensus that fetal pain depends on the functioning of pathways in the brain between the thalamus and the cortex.” A 2015 article in FactCheck.org found there was no causal relationship between fetal withdrawal from stimuli and feelings of pain because any “recoil is more of a reflex” that is distinct from “the experience of pain” itself.
In an interview with Salon, Columbia University Medical Center’s Dr. Anne Davis said these warnings about fetal pain and brain development are “created concerns” that are “based in politics,” not science. According to Davis, a fetus’s brain is not sufficiently developed to perceive pain until 24 weeks gestation. Politicians “can have an opinion about that, but it doesn’t change the information,” she told Salon. A March 2010 report from the Royal College of Obstetricians and Gynecologists affirmed that “research shows that the sensory structures are not developed or specialised enough to experience pain in a fetus less than 24 weeks.”
Furthermore, Allen noted, two of the three researchers whose work is cited to support fetal pain bills “have already publicly disagreed with the way in which their findings have been used by anti-abortion advocates”:
In 2013, Dr. Merker told The New York Times that his frequently-cited research “did not deal with pain specifically.” Even Dr. Anand, who believes that fetal pain could start earlier than the literature suggests, told the Times that he used to testify in court cases on abortion bans but that he stopped because “it’s just gotten completely out of hand.”
In Slate, writer Nora Caplan-Bricker warned that there are compounding negative effects when 20-week bans operate in conjunction with other targeted restrictions on abortion care. She argued that South Carolina’s bill “constricts an already narrow window of opportunity” for patients to access abortion because in “states with multiple restrictions on abortion -- of which South Carolina is one -- women who decide to terminate early in pregnancy can be delayed for weeks or months as they scrape together money or contend with logistics.”
South Carolina’s anti-choice lawmakers aren’t stopping with a ban on abortion at 19 weeks. As ABC reported, the South Carolina legislature is already hard at work on its next attack on abortion access: “a bill opponents say would essentially ban abortion past 13 weeks.”