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Maryland's Pain-Capable Unborn Child Protection Act: Personal Accounts of a Child's Ability
to Feel Pain
Therese M. Hessler 19 July 2018
House Bill 1424, The Pain-Capable Unborn Child Protection Act, was designed to protect pain-capable beings from an agonizing death caused by abortion after 20-weeks gestation.i
In sharing their personal stories, the witnesses’ intentions were to establish that these children can feel pain starting at 20-weeks gestation; many of the parents of children that were born prematurely gave insight to those in attendance on how these tiny beings very clearly reacted to pain when a variety of stimuli were introduced.
One testimony was also provided by Gavin Farley, a healthy and athletic 18-year-old who was considered a preemie when he was born at 26-weeks gestation. Both Gavin and his mother, Tiffany Farley, shared how even though he weighed only 2lbs 2oz at birth, Gavin still screamed when getting his blood drawn – a clear reaction to pain-causing stimuli.
Like Gavin and his mother testified during the bill hearing, it is well-known by the medical community that the fetus withdraws from a needle and similar objects from about 18-weeks and also launches a stress response following a needle puncture.ii
House Bill 1424’s sponsor, Delegate Barrie Ciliberti, District 4 Carroll and Frederick Counties, made his opening remarks drawing parallels between the reactions that one may have when approached by a needle or an object that we know will hurt if we come into contact with it. “Imagine the pinch of a needle on the bottom of your foot,” he said, “we would recoil our foot back knowing what pain this would cause. This is no different from the reaction of an unborn child at 20-weeks gestation.”
“To Mend a Birth Defect, Surgeons Operate on the Patient Within the Patient,” which was published in the Health Section of The New York Times this past October, tells the story of a tiny patient, still within his mother’s womb… “fingers, toes, the soles of his feet – all exquisite, all perfectly formed.”iii It’s the story of a child, just 24-weeks and two days old, who is about to have surgery for spina bifida, even though the mother felt forced to terminate her pregnancy by doctors after receiving her child’s initial diagnosis (even though spina bifida is generally not fatal,)iv Lexi Royer and her husband, Joshua, decided to look for other options knowing that this might be their only chance to have a child.
Fetoscopic surgery is ideally performed from 22 to 24-weeks gestation, which is early enough to prevent nerve damage but late enough so that the baby has a decent chance of surviving and doing well if something goes wrong and has to be delivered.v Not only do the medical professionals and researchers acknowledge there is a high survival rate at this gestational age, additional evidence is further found in the fetoscopic procedure which requires the mother and the child within her being operated on to receive anesthesia.vi
Stories like the aforementioned one that ran in The New York Times further confirm that the medical community acknowledges that at a very young gestational age, these children can feel pain.vii
Despite medical advancements that acknowledge fetal development and the requirement for pain blocking medication like anesthesia during fetoscopic surgeries, only 16 states protect pain-capable unborn children with “20-week bans” (a phrase formed by opposition groups for the Pain-Capable Unborn Child Protection Act)viii but in total 24 states currently protect unborn children from abortion after 20-weeks gestation.ix However, Maryland has very little regulation in place regarding abortion and has no protection for pain-capable unborn children.
A Marist poll conducted in January 2018 showed 63% of Americans - including 56% of Americans who identify as pro-choice - support banning abortions after 20-weeks fertilization.x Despite these numbers, the majority of current Maryland House committee members have continually floundered when it comes to aligning with the majority of the populations belief that life should be protected after a certain point based on fetal development, viability, and to the point where we clearly and concisely know that these unborn children are capable of feeling pain. Legislation similar to House Bill 1424 has been introduced in Maryland’s General Assembly every year since 2013 and has failed to be heard for a vote out of committee each year.
Additional opposition from groups like NARAL,xi the ACLU,xii and Planned Parenthoodxiii argue that “20-week abortion bans” such as House Bill 1424 are dangerous, unconstitutional and extreme. There is nothing dangerous, unconstitutional, or extreme about the Pain-Capable Unborn Child Protection Act. HB1424 is simply aimed at protecting unborn children [and women] from late-term abortions.
The validation in scientific and medical research further asserts that a 20-week post-fertilization fetus can feel pain and that HB1424 does not create any unwanted government intrusion as it is in the States interest to protect those within the State who can feel pain.xiv It is the duty of the State to assert a compelling State interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates they are capable of feeling pain; this compelling interest is intended to be separate from and independent of the State’s compelling interest in protecting the lives of unborn children from the stage of viability; and neither State interest is intended to replace the other.xv
As individuals and as a society we must choose the attitude we will embrace regarding fetal pain. Those who insist and deny, “it is impossible to confirm what a fetus experiences,” despite numerous studies and evidence, deny the obvious fact that it is equally impossible to know what any other individual experiences at any stage of life and is not a legitimate argument to ignore what we know from science and from our own observations.
This choice very much speaks to the kind of society and State we want to be.
[i] HB1424. Maryland General Assembly. 2018. (http://mgaleg.maryland.gov/2018RS/bills/hb/hb1424f.pdf)
[ii] Royal College of Obstetricians and Gynecologists, Fetal Awareness. Review of Research and Recommendations for Practice (2010).
[iii] The New York Times. To Mend a Birth Defect, Surgeons Operate on the Patient Within the Patient. Grady, Denise. October 2017. (https://nyti.ms/2h1GG4W)
[iv] National Institute of Neurological Disorder and Stroke. Spina Bifida Factsheet. July 2018 (https://www.ninds.nih.gov/Disorders/Patient-Caregiver-Education/Fact-Sheets/Spina-Bifida-Fact-Sheet)
[v] Ann Trans Med. Advances in fetal surgery. Maselli, Kathryn and Badillo, Andrea. October 2016. (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5107396/)
[vi] Saudi Anaesthetic Association. Anesthesia for fetoscopic intervention. Anwari, Jamil, and Tareen, Zubair. July 2014. (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4141404/)
[vii] The New York Times. To Mend a Birth Defect, Surgeons Operate on the Patient Within the Patient. Grady, Denise. October 2017. (https://nyti.ms/2h1GG4W)
[viii] Rewire. 2018. (https://rewire.news/legislative-tracker/law-topic/20-week-bans/)
[ix] National Right to Life Committee. January 2018. (https://www.nrlc.org/uploads/stateleg/PCUCPAfactsheet.pdf)
[x] Americans’ Opinion on Abortion. January 2018. (https://www.kofc.org/en/resources/communications/abortion-limits-favored.pdf).
[xi] NARAL America. January 2017. (https://www.prochoiceamerica.org/report/abortion-bans-20-weeks-dangerous-restriction-women/)
[xii] ALCU. 2018 (https://www.aclu.org/issues/reproductive-freedom/abortion/call-stop-unconstitutional-20-week-abortion-ban-bill)
[xiii] Planned Parenthood. 2018 (https://www.plannedparenthoodaction.org/issues/abortion/20-week-bans)
[xiv] Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
[xv] HB1424 p.3 lines 32-37 Section 20-217 (13).
Therese M. Hesselr, is the Director of Administration and Legislation at Maryland Right to Life