A review of the findings of fact contained in the Act confirms that the House acted because of its conclusion that facts existed on which it could make a judgment that abortions after 20 weeks gestation. Key findings of fact by the House include:
"(1) Pain receptors (nociceptors) are present throughout the unborn child's entire body and nerves link these receptors to the brain's thalamus and subcortical plate by no later than 20 weeks after fertilization.
(2) By 8 weeks after fertilization, the unborn child reacts to touch. 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.
(3) In the unborn child, application of such painful stimuli is associated with significant increases in stress hormones known as the stress response.
....
(11) Consequently, there is substantial medical evidence that an unborn child is capable of experiencing pain at least by 20 weeks after fertilization, if not earlier."The House made findings as part of the Act. Those findings, in turn, find substantial support in testimony from a source of apparent significant credibility. A decade ago, Congress enacted the Partial Birth Abortion Ban Act of 2003. Two constitutional challenges soon followed in federal courts. Those challenges, successful in trial courts, ultimately led to the Supreme Court's decision sustaining the constitutionality of the PBABA. At trial, the evidence offered supporting the PBABA included the testimony of Dr. Kanwaljeet S. Anand, Regarding that testimony, the federal trial court in New York City said the following:
The Court finds that the testimony at trial and before Congress establishes that D&X is a gruesome, brutal, barbaric, and uncivilized medical procedure. Dr. Anand's testimony, which went unrebutted by Plaintiffs, is credible evidence that D&X abortions subject fetuses to severe pain. Notwithstanding this evidence, some of Plaintiffs' experts testified that fetal pain does not concern them, and that some do not convey to their patients that their fetuses may undergo severe pain during a D&X.That the Court stated its finding thus is particularly significant because, despite finding that the evidence established "severe pain" being experienced by "fetuses," the Court still concluded that the PBABA violated the liberty interests of women in access to abortion procedures. Had the Court made that finding and struck down the statute, partisans might have accredited the decision to a bias on the part of the Court regarding the statute. There, however, the Court's bias -- if one existed -- favored the liberty interest in women over the power of Congress to restrict abortions using a procedure it acknowledged caused severe pain to fetuses.
The issue of pain in the fetus is not without a skin of controversy. In "A Systematic Multidisciplinary Review of the Evidence," published in the Journal of the American Medical Association, a lawyer and three doctors conducted a review of studies on pain in fetuses. The survey is accessible and fairly understandable. They conclude:
Because pain perception probably does not function before the third trimester, discussions of fetal pain for abortions performed before the end of the second trimester should be noncompulsory. Fetal anesthesia or analgesia should not be recommended or routinely offered for abortion because current experimental techniques provide unknown fetal benefit and may increase risks for the woman.The survey gained some notice in media, probably because it was carried as an article in JAMA. What the authors of the article did not disclose to the editors of JAMA, however, was a record of pro-abortion activism that might reasonably be interpreted as influencing the selection of studies reviewed and reported by the article.
The National Right to Life Committee prepared a rebuttal to the study. You can find it here. A damning segment of the NRLC rebuttal connects the study's authors pro-abortion advocacy:
9. The lead author of the article, Susan J. Lee, who is now a medical student, was previously employed as a lawyer by NARAL, the pro-abortion political advocacy organization (Knight Ridder, August 24).
10. One of Lee's four co-authors, Dr. Eleanor A. Drey, is the director of the largest abortion clinic in San Francisco (San Francisco Chronicle, March 31, 2004, and Knight Ridder, August 24, 2005). According to Dr. Drey, the abortion facility that she runs performs about 600 abortions a year between the 20th and 23rd weeks of pregnancy (i.e., in the fifth and sixth months). (San Francisco Chronicle, March 31, 2004) Drey is a prominent critic of the Partial-Birth Abortion Ban Act, and a self-described activist. (In a laudatory profile in the newsletter of Physicians for Reproductive Choice and Health, September 2004, it was noted that "much of Dr. Drey's research centers on repeat and second-trimester procedures . . .," and quotes Drey as saying, "I am very lucky because I get to train residents and medical students, and I really do feel that it's a type of activism.") Drey is also on the staff of the Center for Reproductive Health Research and Policy (CRHRP) at the University of California, San Francisco -- a pro-abortion propaganda and training center. []
11. However, one reporter (Knight Ridder's Marie McCullough) did contact JAMA editor-in-chief Catherine D. DeAngelis regarding the ties of Lee and Drey. McCullough reported that DeAngelis "said she was unaware of this, and acknowledged it might create an appearance of bias that could hurt the journal's credibility. 'This is the first I've heard about it,' she said. 'We ask them to reveal any conflict of interest. I would have published' the disclosure if it had been made." (Knight Ridder, August 24, 2005) A day later, DeAngelis told USA Today that the affiliations of Drey and Lee "aren't relevant," but again said that the ties should have been disclosed. If she really thought the affiliations were not relevant, why would she say that they should have been disclosed? If a review of the same issue by doctors employed by pro-life advocacy groups had been submitted or published, would those affiliations have been ignored by journalists?
12. Dr. David Grimes, a vice-president of Family Health International, has been relied on by CNN, the New York Times, and some other media as a purported expert to defend the paper. Dr. Grimes has made pro-abortion advocacy a central element of his career for decades. (During the time he worked for the CDC in the 1980s, his off-hours work at a local late-abortion facility sparked protests from some pro-life activists. In 1987, a year after he left the CDC, Grimes testified that he had already performed more than 10,000 abortions, 10 to 20 percent of those after the first trimester.) In addition, Grimes was previously the chief of the Department of Obstetrics, Gynecology and Reproductive Sciences at the San Francisco General Hospital -- the very same institution where author Drey directs the abortion clinic.Still, these criticisms, while revealing of researcher bias, tend toward ad hominem and do not, by themselves, resolve the questions of fetal pain.
Dr. Anand's testimony serves as a clear, highly experienced, and expert source on the question of fetal pain. In his corner, among other voices, there is the British Journal of Obstetrics and Gynaecology. In a 1999 issue of BJOG, another review on fetal pain concluded as follows:
The assessment of whether or when the fetus is likely to feel pain has to be based on an evaluation of the available anatomical and physiological evidence. The physical system for nociception is present and functional by 26 weeks and it seems likely that the fetus is capable of feeling pain from this stage. The first neurones to link the cortex with the rest of the brain are monoamine pathways, and reach the cortex from about 16 weeks of gestation. Their activation could be associated with unpleasant conscious experience, even if not pain. Thalamic fibres first penetrate the subplate zone at about 17 weeks of gestation, and the cortex at 20 weeks. These anatomical and physiological considerations are important, not only because of immediate suffering, but also because of possible long term adverse effects of this early experience.The technical summary led to the following pithy and, honestly, piteous appeal:
The eighteenth century philosopher, Jeremy Bentham, wrote of animals The question is not Can they reason?, not Can they talk?, but Can they suffer?. This caused a change in attitude towards animals and their treatment that is continuing to day, such that in the UK, even frogs and fishes are required by Act of Parliament to be protected by anaesthesia from possible suffering due to invasive procedures. Why not human beings?Indeed, why not human beings?
Perhaps not human beings because, among the feral lot of us, there are so many Obamas, so many Wasserman Schultzes, panderers to the lowest urges, who recognize no point in time when a child is too like us to accept the unrestrained brutality of abortion, when a method is too barbaric to tolerate its application as the solution to the problem. Obama's take on abortion is found in his remarks on the 38th anniversary of the Supreme Court's decision in Roe v. Wade:
Today marks the 38th anniversary of Roe v. Wade, the Supreme Court decision that protects women's health and reproductive freedom, and affirms a fundamental principle: that government should not intrude on private family matters. I am committed to protecting this constitutional right.Wasserman Schultz, no doubt, has an answer to the question why not protect fetal Americans from possible suffering due to abortion procedures. For Wasserman Schultz and her cohorts, the only justifiable restriction on abortion is found in the subjective judgments of abortion-bound women. Any federal statutory imposition might be taken as an expression of distrust of women's judgments about such matters, and that, in Wasserman Schultz's schema is the unpardonable sin.
