Our Laws Protect Animals but Not Human Beings

Tourists walk past the U.S. Capitol in 2013. (Jonathan Ernst/Reuters)
The Senate unanimously outlawed animal cruelty but will continue to permit killing fetuses after they have the capacity for pain.

Last November, President Donald Trump signed the Preventing Animal Cruelty and Torture Act, criminalizing some acts of animal abuse. The Senate had passed the legislation unanimously.

This week, the Senate will consider a bill to criminalize the act of killing an unborn human being after 20 weeks’ gestation, the point at which scientific evidence suggests fetuses can feel pain. But the Pain-Capable Unborn Child Protection Act will not pass, because too many politicians are committed to the notion that the unborn have no rights if they are deemed unwanted.

The point is not, of course, that animal cruelty is acceptable or should be legal, though it is debatable whether it is a matter in which the federal government may intervene. But we must ask ourselves: What kind of society produces citizens and lawmakers alike who see the evil in crushing animals but who cannot agree that it should be illegal to crush a tiny human being?

The last time the Senate considered the pain-capable bill, in January 2018, the legislation already had passed the Republican-held House by a wide margin. It failed in the Senate after 44 Democrats, along with abortion supporters Susan Collins (R., Maine) and Lisa Murkowski (R., Alaska), opposed it.

The arguments against the bill rest on several false claims, including the perennial defense of abortion: that unborn human beings are not human beings at all but rather are a clump of cells (not unlike any one of us) or a part of the mother (with his or her own distinct heartbeat and fingerprints and unique DNA). Limiting abortion after 20 weeks restricts health-care options and consigns women to second-class status, Democrats assure us.

Opponents of the legislation assert, too, that prohibiting abortion on the basis of pain capacity is “junk science.” They insist, without evidence — and in contradiction of evidence — that studies haven’t proven that fetuses feel pain. Instead, they offer pseudo-scientific assessments, such as “There’s no definitive way to measure pain” and “Pain is always a subjective experience.”

Fetal pain, like all pain, is difficult to quantify or define. But the scientific information we do have shows that fetuses have the necessary physiological structures to feel pain perhaps even earlier than 20 weeks.

A new paper in the Journal of Medical Ethics, for instance, evaluated available neuroscientific data and found that fetuses likely can feel pain at an earlier point than previous research has suggested: “More recent evidence calling into question the necessity of the cortex for pain and demonstrating functional thalamic connectivity into the subplate is used to argue that the neuroscience cannot definitively rule out fetal pain before 24 weeks.”

Basic embryology, meanwhile, shows that the human nervous system is established by six weeks’ gestation, and sensory receptors for pain begin to develop around the child’s mouth as early as ten weeks and are present in the skin by 20 weeks. Connections between the spinal cord and the thalamus, facilitating pain perception in both fetuses and adults, are present at 20 weeks’ gestation.

As early as eight weeks, fetuses exhibit reflex movement during invasive procedures and hormonal stress responses by 16 weeks, including “increases in cortisol, beta-endorphin, and decreases in the pulsatility index of the fetal middle cerebral artery.” Two independent studies in 2006 examined fetal brain scans and infants delivered prematurely and found a “clear cortical response” to painful stimuli. Both concluded that, as one study put it, there was “the potential for both higher-level pain processing and pain-induced plasticity in the human brain from a very early age.”

The medical community evidently believes there’s at least some chance that fetuses can feel pain, because doctors routinely administer anesthesia during prenatal surgery. The leading textbook on clinical anesthesia states: “It is clear that the fetus is capable of mounting a physiochemical stress response to noxious stimuli as early as 18 weeks’ gestation.” One prenatal-surgery group informs mothers prior to surgery that “your unborn baby will be given an injection of pain medication and medication to ensure that the baby doesn’t move.”

The fact that fetuses receive anesthesia in the context of therapeutic surgery — not to mention the fact that they receive therapeutic surgery at all — underscores the hideous disparity between how doctors treat fetuses when they are wanted and when they are not.

Are these patients, or are they medical waste? To some, the answer hinges entirely on whether they are wanted by their mothers.

A majority of Americans supports pain-capable abortion bans not because science has irrefutably proven that every fetus feels the same level of pain, but because it should not require definitive scientific proof — an ever-evolving standard — to decline to inflict death by dismemberment on human beings based on arbitrary assessments of their value.

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