Here's a place in the law where some very deep and difficult issues of science, philosophy of mind, and ethics, come out in a courtroom.
A doctor who performs abortions found himself quizzed by a federal judge about whether a fetus feels pain during a controversial abortion procedure and if the physician worries about that possibility. The inquiry, at times graphic, came in U.S. District Court on Wednesday after lawyers on both sides had finished questioning Dr. Timothy Johnson, a plaintiff in one of three lawsuits brought to try to stop enforcement of the Partial-Birth Abortion Ban Act.
"Does the fetus feel pain?" Judge Richard C. Casey asked Johnson, saying he had been told that studies of a type of abortion usually performed in the second trimester had concluded they do. Johnson said he did not know, adding he knew of no scientific research on the subject.
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The simultaneous litigation centers on the ban of what lawmakers defined as "partial-birth" abortion and what doctors call "intact dilation and extraction" - or D&X. In the procedure, a fetus is partially delivered and its skull is punctured. An estimated 2,200 to 5,000 such abortions are performed annually in the United States, out of 1.3 million total abortions.
Government lawyers say the law protects fetuses from pain during the abortion procedures that usually involve crushing the soft skull or draining brain tissue to shrink the fetus to a size in which it can be pulled from the body.
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Behind the question 'does the fetus feel pain?' lies several important issues surrounding pain and the nature of value. Since these are my specialty, let me try to briefly sort out some of them.
The first is the question whether pains are necessarily (intrinsically) bad. Most people believe that this has to be true (indeed, many think it is a conceptual truth about pain). Assume it is true.
It may very well be that late-stage fetuses have the neurology necessary for processing nociception (the signals produced by painful stimuli). If so, and if phenomenological states supervene on neural states, then fetuses plausibly are capable of having the sensory component of pains (roughly, the 'hurting' of the pain). So if something is a pain by virtue of its phenomenology --how it feels--, then it would follow that (a) fetuses can have pains, and (b) the pains fetuses have are bad. (Notice that this is not yet an answer to the judge's question --having pain may be distinct from feeling pain)
The question is then whether the pain is bad for the fetus.
Some plausible interpretations of cases involving patients with leucotomies or otherwise disassociated from their pains suggest that a pain isn't bad for someone unless she identifies with it as hers. Hence a potential difference between 'having pain' and 'feeling pain'. Clearly, a fetus doesn't have the sense of self necessary for identifying with its pain, and so the fetus's pain might be bad, but not bad for the fetus. (If that sounds incoherent, good. I do think we should reject the claim that all putative pains are intrinsically bad; but I'm just trying to organize the issues here.) Thus the law would protect no interests of the fetus in protecting it from pain; no more than proscribing the infliction of pain on chairs.
Above I assumed that we could take x to be a pain in virtue of x having the sensory component of pain. Is that correct?
This again is a hard question. In the famous McGill dog study (references on request), some researchers raised puppies without seeing older dogs react to painful stimuli. When these puppies were grown, they'd do things like lick red-hot heating pipes or repeatedly nuzzle lit matches with very little adverse reaction. Since they had, ex hypothesi, roughly the same neural architecture as other dogs, we can assume that they had the sensory component of pain. This combined with everything we know about the conative and affective components of pain (emotions, disliking the pain, being motivated to escape it, etc), suggests that, if we think that pains are necessarily bad, we should think that there is more to pains than their sensory components. Since fetuses do not have the capacity for these other components of pains, it follows that they do not have pains.
So, I suggest then, that the proper answer to the judge's question is 'no'. But I've only skimmed the surface here of several very important and deeply contentious issues in pain science, philosophy of mind, and ethics, so I don't expect this brief comment to convince many. Indeed, these claims only follow from the assumption that all pains are intrinsically bad.
If readers are interested, I'll return to the issues in more depth and detail in later posts.