Fetal Pain Bill: Proposed Texas Measure Based On Shaky Science

Texas’s most recent attempt to limit abortion comes in the form of a “fetal pain” bill, introduced by two Texas House Republicans.

The bill seeks to shorten the time a woman can legally seek an abortion by seven weeks because “science” tells them that the fetus begins to feel pain at 20 weeks. The bill is another attempt to mislead the Texas public into believing the abortion needs to be further restricted in a state that already has some of the nation’s strictest reproductive rights laws. 

House Bill 2364, introduced by state Reps. Jodie Laubenberg (R-Parker) and Jeff Leach (R-Plano), would not only shorten the legal time to get an abortion from 27 weeks to 20 weeks, but would require a woman to be absolutely certain that she is less than 20 weeks pregnant. If there is any doubt, she would be unable to terminate her pregnancy — even in cases of rape and incest.

Why? Because pro-life activists are running around telling people that the fetus can begin to feel pain at 20 weeks, even though that has been scientifically disproved by scientists who published a detailed report in the Journal of the American Medical Association and researchers at University College London.

"Babies can distinguish painful stimuli as different from general touch from around 35 to 37 weeks gestation — just before an infant would normally be born," Lorenzo Fabrizi, lead author of the study, said in a statement published by ABC

"The findings ... should help inform the pain perception portion of the abortion debate," said Dr. F. Sessions Cole, director of the division of newborn medicine at Washington University School of Medicine at St. Louis. "Although this study specifically addresses brain wave differences between premature and term infants, not fetuses, after [receiving] painful and tactile stimuli, it suggests that brain maturation required for fetal pain perception occurs in late pregnancy, more than 11 weeks after the legal limit for abortion in the United States. 

Unfortunately, no amount of science will convince those seeking to restrict abortion rights in Texas. Despite having reliable scientific proof, the bill is still being called the “fetal pain” bill, which is distorting its perception among Texas’s voting population. I mean, would you admit to being against a law that would ostensibly protect fetuses from pain? Absolutely not. 

A recent poll conducted by the University of Texas and the Texas Tribune indicate that a majority — 57% — of Texans support the “fetal pain” legislation and a large number — 42% — said they “strongly support” the proposal.

“Part of this is a framing issue. The idea that you would be in favor of ‘fetal pain’ is a pretty tough position,” said Daron Shaw, co-director of the poll and a professor of government at the University of Texas-Austin.

He continued: 

“In Texas, the leadership on a litmus test issue, abortion, has framed the issue in a way where they’re likely to do pretty well… If Republicans talk about parental notification or fetal pain, they do pretty well; if they talk about rape or incest, that’s a loser.” 

And that’s the point: Republicans aren’t talking about rape or incest; they are instead framing it in such a way that emotionally manipulates people into believing in the necessity of a completely unnecessary and arbitrary law that further restricts the rights of women to make their own choices with their body.

The seriousness with which this issue is treated might lead you to believe that abortions between 20 and 27 weeks are done in high numbers, pushing Republican legislators to act. But that wouldn’t be a correct assumption either. According to a study completed in 2005 by the Center for Disease Control less than 1.3% of all abortions occur after 21 weeks.

Despite the relatively small number of people effected and it’s scientific illegitimacy, the bill is likely to pass through both the House and Senate. Opposition to abortion is essentially symbolizes whether a Republican is truly a Republican in Texas, and their majorities in both the House and the Senate in addition to the strong anti-abortion stances by the House and Senate leadership makes this bill likely to slide through with little opposition. 

This bill is arguably not as invasive as previous abortion restrictions that passed easily to become law. The Texas Sonogram Law, which went into effect last February, requires doctors to show women images from mandatory sonograms, play fetal heartbeats aloud and describe the features of the features of the fetus to be performed before a required 24 hour waiting period before the abortion could be performed. While there were exceptions in cases of rape, incest, and fetal deformity or for women who had to travel great distances, this law was still a slap in the face to women who the state deemed unable to make education decisions without forced medical intervention. While the law has been bouncing back and forth in federal courts, a judge ruled in constitutional only a few weeks ago.

The new “fetal pain” law on top of this law, will put Texas on the top of the list for the most restrictive abortion laws in the country — second only to Arkansas, which recently passed a law declaring all abortions done 12 weeks or after illegal if the fetus has a detectable heartbeat. 

But there may be hope on the horizon for Texas — and Arkansas — as a judge in Georgia has recently suspended a Georgia law almost identical to the proposed Texas bill that would ban abortions after 20 weeks. If the court follows through and strikes down the law on the grounds of Constitutionality, it could be an important case for those threatening to take the Texas bill to court if it becomes law.

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Jessica Huseman

Jessica wrote for Mic.com until Feb. 2014. Now she's an investigative reporter at The Teacher Project, writing articles on K12 education for Slate.com. Her work has appeared in ProPublica, The Atlantic, Slate, The Dallas Morning News and Chalkbeat and more. Find her contact info and her recent work at www.jessicalhuseman.com.

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