This is a photo from an anti-abortion protest, but sure, let’s talk about the reality of abortion. Photo by Charles McQuillan/Getty Images

A bill titled the “Pain-Capable Unborn Child Protection Act,” which would ban nearly all abortions up to 22 weeks gestation, just passed the House of Representatives in a 237-189 vote. But even though pain is bad and babies are good (I love babies, personally), this bill is a steaming pile of bullshit. Starting with its title.




Here’s where you can breathe a very brief sigh of relief: Analysts are saying the bill is unlikely to pass the Senate. Also, the Supreme Court refused to hear an appeal when a similar state law was struck down a few years ago in Arizona. OK, enough relief. Let’s take a look at what’s really going on.

There’s a good chance this bill only exists to force lawmakers to take a stand on whether or not they are pro-choice. (The “rile up the conservative base” strategy.) And its main effect, so far, is to get a lot of people talking about “fetal pain” as if it has something to do with 22-week abortions. It does not.


Pain Is Not a Thing That a 22 Week Fetus Can Feel

“I think it’s terrible that we’re seeing junk science in our political system,” Dr. Jen Gunter, an obstetrician/gynecologist and pain specialist, says when I ask her about the science behind fetal pain, which a recent STAT article describes as disputed. “It’s not disputed if you believe in science, let’s put it that way.”

At the beginning of the bill, Congress “finds and declares” several things that sound a lot like certain talking points from anti-abortion activists. For example, that pain receptors, or nociceptors, exist before 20 weeks.


“It’s like saying ‘I have a key from a keyboard, therefore I can write a Word document,’” Gunter explains. “You need the rest of the keyboard, you need the computer, you need it to be plugged in...you need more than a key from a keyboard to write a document.” In neurological terms, those nociceptors need to be connected, through nerves, all the way to parts of the brain that can perceive pain, and the brain has to be conscious and capable of perceiving it. Those requirements aren’t met until much later in pregnancy.

“The best available data indicates that fetuses can’t perceive pain at least until the third trimester, 26 weeks or so in pregnancy,” agrees Dr. Daniel Grossman, a professor of obstetrics and gynecology at UCSF. He points out that “all the major medical societies” in the US and several other countries have gone on record saying so. Here is the American Congress of Obstetricians and Gynecologists’ 2013 statement on the topic, which they headlined “Facts Are Important.”


Both Dr. Gunter and Dr. Grossman pointed out that the other supposed evidence in the bill’s preamble is either incorrect or irrelevant to the question of pain. For example, it’s possible to poke a fetus and see it move in response, but that’s a type of reflex that doesn’t involve the brain. The bill also states that fetal surgery is done under anesthesia, but Dr. Gunter clarifies that the anesthesia is for the pregnant person’s comfort and to make sure the fetus doesn’t move.


But what if our knowledge is incomplete, I asked Dr. Gunter? After all, doctors used to think newborns couldn’t feel pain either. “There are many things we may find out in the future, but we don’t make laws or practice medicine based on hypotheses,” she says.

So I asked: Is there any legislation that would make sense for somebody who is genuinely concerned about babies being in pain? “Perhaps they should be concerned about children having health care when they’re born,” she says. After all, a lack of appropriate care can make health conditions even more painful.


This Bill Is Just a 22-Week Abortion Ban

That’s right, 22 weeks, even though the bill’s text (and many news reports) talk about “20 weeks.” That’s 20 weeks from the date of conception, which is not how doctors or anyone else typically talks about pregnancy. If you’re 17 weeks pregnant, that means there have been 17 weeks since the start of your last period. Egg and sperm didn’t meet that day, but rather two weeks later. So, yes, the instant you get pregnant you are two weeks pregnant. This is a standard part of the pregnancy bookkeeping. So whoever wrote this bill either doesn’t know how to count weeks in a pregnancy, or wants to keep people confused about what the bill actually does. (Imagine somebody who is 19 weeks pregnant and can’t get to the clinic until next week; they would think it’s too late.)


The Complicated Science Behind When Babies Are Conceived Chances are you were told in school that you could get pregnant any time you have sex so don’t have Read more

The bill not only bans abortions after that point, but also adds language that would be difficult to impossible for doctors to follow. Dr. Gunter pointed out several problematic sections of the bill while on the phone with me, and she kept saying “I’m a doctor, and I don’t know how to interpret this.” For example, there is a requirement to try to save the life of any baby accidentally delivered alive. Does that mean that now all preemies must be resuscitated? (Currently, when a baby is born so early they have very little chance of survival, parents can say no to rescue efforts.)


The section about allowing abortions to save the mother’s life is similarly vague: when, exactly, is a woman’s life “endangered?” If a pregnant person’s membranes rupture, her fetus may still be alive but she is at risk of a life-threatening infection, and the infection poses greater and greater risks to the person’s life as it progresses.

In Ireland, Savita Halappanavar died because hospital staff were unsure when exactly she was sick enough for an abortion to be life-saving; they ended up waiting too long. Dr. Gunter recalled being in a similar situation when she practiced in Kansas. “The hospital lawyers called the person who wrote the bill, at home. They patched me through in a three-way conversation, so I could ask this person if I was allowed to do a termination on this ill pregnant woman. Are we all going to have to call [the new bill’s author, Rep. Trent] Franks now?”