New rule means doctors must prescribe unnecessary treatment based on idea fetuses can feel pain at 20 weeks – which medical authorities do not endorse

How do you satisfy a law when the law requires you to solve an imaginary problem?

That is the quandary abortion providers say they find themselves in now that the governor of Utah has signed a law forcing providers to prevent fetal pain in terminations.

The restriction, which will apply after the fetus reaches 20 weeks, is the first of its kind. And it has caused a familiar uproar about unnecessary meddling by lawmakers in a procedure they barely understand.

But there is another problem with the law, abortion providers say: a total lack of medical guidance for how doctors might fulfill its requirements.

“It’s a head-scratcher as a doctor, because we don’t even know how to follow this law,” said Dr Anne Davis, the medical director for Physicians for Reproductive Health and a practicing abortion provider. “The law says we have to give anesthesia to the fetus because the fetus might feel pain. OK, how do you address a concern that is purely theoretical?”



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The problem stems from the law’s very premise, which is that fetuses are capable of feeling pain after 20 weeks of development. It is a common anti-abortion assertion, but there are serious questions about the science.

Major, mainstream medical associations such as the American College of Obstetricians and Gynecologists and the Royal College of Obstetricians and Gynaecologists in the UK say claims that fetuses can feel pain that early in a pregnancy are medically unfounded. Comprehensive reviews of medical research have shown that the earliest a fetus develops the pathways for perceiving pain is probably 29 weeks after a woman’s last period, according to the ACOG. Only a few outlier studies suggest that fetuses are capable of pain any earlier.

As the result, there are no widely used and tested protocols for giving a fetus anesthesia.

“There’s just no guidance,” said Dr Sarah Imershein, an OB-GYN from Washington DC speaking on behalf of ACOG. “If in fact they’re asking for the woman to be totally put to sleep for a procedure, I don’t even know if the fetus is ‘asleep’, so to speak … I’m genuinely not sure what the law is telling doctors they need to do. What I can tell you is that the people who wrote the law have no idea how medicine develops its methods for protecting patient safety.”

Davis agreed. “You can’t drill down on this law, because how would I even guess if I’ve addressed an artificial problem?” she said. “There’s no protocol to tell us how to do that, no studies to tell us how to do that, no guidelines, no particular techniques.”



The difficulties of fulfilling the law are a part of why reproductive rights groups see the law as more outrageous than almost any other in the country. (The measure requires providers to “administer an anesthetic or analgesic to eliminate or alleviate organic pain to the unborn child”.) Davis notes that many laws require doctors to give patients information, designed to dissuade them from having an abortion, which most mainstream medical groups find false. For example, five states require abortion providers to warn patients of a link – which is unproven – between breast cancer and abortion.

But reading something to someone is one thing, said Davis. “It’s another thing entirely to change the way you practice medicine, and introduce a risk with no benefit, because of a state mandate.” The law makes an exception if the physician attests that the anesthesia or analgesic would harm the woman. But Davis said that giving a patient more anesthesia than they require – which the law seems to demand – is always risky.

“Any administration of any anesthesia, whether it be general, local or sedation, requires a patient-doctor relationship and a shared decision based on a discussion of the risks, benefits and medical indications in a given situation,” said Dr Ted Yaghmour, the chair of obstetric anesthesia for the American Society of Anesthesiologists. “This procedure would not be like anything else. Anything that would be more risky to the woman without any benefit is a very dangerous thing to do.”

State senator Curt Bramble, the law’s author, works as an accountant.

The new law will affect a small portion of Utah abortion patients. Utah bans abortion once the fetus is viable, meaning the law only covers about two weeks of pregnancy before abortion is no longer an option. In 2014, only 17 women had abortions after 20 weeks in Utah, according to the Salt Lake Tribune.



Still, abortion providers see in the law a dangerous shift.

“I was trying to imagine actually having the conversation the law appears to require with a woman,” Davis said. “‘This is what kind of anesthesia I would recommend as a doctor, but we’re going to do something else, because this is what the state says is best for you.’ You can’t say that with your training and ethical standards as a doctor.”