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?

Categories: Fetal_pain, Legal, Abortion