11 January 2006

Fetal pain law

Just saw this:
Wisconsin Gov. Jim Doyle (D) on Friday vetoed a bill (SB 138) that would have required physicians to tell women seeking abortion at more than 20 weeks' gestation that fetuses can feel pain, the AP/St. Paul Pioneer Press reports (Richmond, AP/St. Paul Pioneer Press, 1/7). The state Senate and Assembly approved the bill in September and November 2005, respectively. Supporters of the bill say some research supports the claim that fetuses can feel pain, while the bill's opponents say the research has not been proven (Kaiser Daily Women's Health Policy Report, 11/10/05). Doyle said there is no definitive proof that fetuses can feel pain and added that the state Legislature, which has a Republican majority, should not be permitted to determine what constitutes scientific fact, the AP/Pioneer Press reports. Doyle in his veto message wrote, "It would be reckless to inject a requirement that doctors communicate unproven science to their patients during an already difficult and sometimes traumatic time," adding, "This bill intrudes on the doctor-patient relationship ... and contravenes the requirement that doctors provide objective and accurate information to their patients" (AP/St. Paul Pioneer Press, 1/7). Link

Here's what a pretty authoritative JAMA study concluded awhile back:
Conclusions Evidence regarding the capacity for fetal pain is limited but indicates that fetal perception of pain is unlikely before the third trimester. Little or no evidence addresses the effectiveness of direct fetal anesthetic or analgesic techniques. Similarly, limited or no data exist on the safety of such techniques for pregnant women in the context of abortion. Anesthetic techniques currently used during fetal surgery are not directly applicable to abortion procedures. Link

There are several serious philosophical problems here. One involves understanding under what conditions we should say a fetus is having pain. Nancy Hardcastle addresses this in the final chapter of her The Myth of Pain.

I'm more interested in what the normative significance of the findings. I believe, for example, that the painful sensation is a very minimally normatively significant property of pain. Other components like emotional responses and cognitive states like meanings, can be much more significant (i.e., weigh more heavily in how evil we adjudge the pain to be).

Suppose then that we find out that at n weeks fetuses have active nociceptive pathways which, when stimulated, evoke some rudimentary withdrawl response. Assuming that we want to say that the fetus experiences pain, it is a further question how normatively significant that pain is. Presumably the fetus's experience wouldn't contain the complex emotions and affect that our pains involve.

But what does this show? Does it mean that the fetus's pain would be only minimally morally significant? Or ought we assess the moral badness of pain for fetuses on a different scale from adult humans? How do we decide? If we have an account of what makes pain intrinsically bad for adult humans, should we assume that account will translate to an account for fetuses?

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Plotinus on pain

Ok. I believe some wierd* things about pain (e.g., pains are not just sensations; pains have two potentially conflicting intrinsic values; some painful sensations are not pains; pain is essentially and intrinsicaly bad in virtue of being the privation of that which is intrinsically good for a person, and many others). But Plotinus seriously one-ups me with this claim about how a person suffers pain.
13. The characteristic activities are not hindered by outer events
but merely adapt themselves, remaining always fine, and perhaps all
the finer for dealing with the actual. When he has to handle particular
cases and things, he may not be able to put his vision into act without
searching and thinking, but the one greatest principle is ever present
to him, like a part of his being- most of all present, should he be
even a victim in the much-talked-of Bull of Phalaris. No doubt, despite
all that has been said, it is idle to pretend that this is an agreeable
lodging; but what cries in the Bull is the thing that feels the torture;
in the Sage there is something else as well, The Self-Gathered which,
as long as it holds itself by main force within itself, can never
be robbed of the vision of the All-Good. Link

I wonder if Plotinus thought himself a Sage...

The Bull of Phalaris:
Perillos of Athens, a brass-founder, proposed to Phalaris, Tyrant of Agrigentum, the invention of a new means for executing criminals; accordingly, he cast a brazen bull, made totally of brass, hollow, with a door in the side. The victim was shut up in the bull and a fire was set under it, heating the metal until it became "red hot" and causing the victim inside to slowly roast to death. So that nothing unseemly might spoil his feasting, Phalaris commanded that the bull be designed in such a way that its smoke rose in spicy clouds of incense. The head of the ox was supplied by a complex system of tubes and stops so that the prisoner's screams were converted into sounds not unlike the bellowing of an infuriated ox. It is also said that when the bull was reopened, the victims' scorched bones shone like jewels and were made into bracelets.

Phalaris commended the invention, and ordered its horn sound system to be tested by Perillos himself. When Perillos entered, he was immediately locked in, and the fire was set, so that Phalaris could hear the sound of his screams.Link

* Since I'm presently on the job market, 'wierd' here means 'exciting, insightful, and challenging'
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