A new Utah law will subject women to medically unnecessary risk in order to ward off a problem that almost certainly does not exist. It makes a significant new incursion on what remains of Roe v. Wade — at a time when the Supreme Court is signaling that anti-abortion state lawmakers have moved too far. And it will likely either drive up the cost of abortions or cause many clinics to stop performing certain kinds of abortion because they will need to recruit new specialist physicians in order to continue serving all women.
The law, colorfully labeled the “Protecting Unborn Children Amendments,” requires abortion providers who perform “an abortion of an unborn child who is at least 20 weeks gestational age” to administer an anesthetic or analgesic to eliminate or alleviate organic pain to the unborn child.” The law’s supporters claim that human fetuses are capable of feeling pain around the twentieth week of pregnancy, and that this bill will help eliminate that pain.
This claim about fetal pain, however, is scientifically dubious at best. According to a paper published by the Journal of the American Medical Association, scans for electrical activity in fetal brains suggest that “the capacity for functional pain perception in preterm neonates probably does not exist before 29 or 30 weeks.” As the same paper explains, fetal pain awareness “requires functional thalamocortical connections,” yet the brain fibers necessary to allow such connections do not start appearing until “23 to 30 weeks’ gestational age.”
Nevertheless, anti-abortion lawmakers frequently cite the idea that fetuses can feel pain at 20 weeks to justify restrictions on reproductive choice.
Utah law typically prohibits abortions around 22 weeks into a pregnancy, when the fetus is deemed viable. Thus, that state’s new law will primarily impact women who seek abortions during a narrow two-week period.
Yet the new law will subject those women to considerable risk. According to the Associated Press, the law will require doctors to either administer general anesthesia or “a heavy does of narcotics” to women impacted by the law. In rare cases, that could lead to a woman’s death. Though anesthesia-related deaths are in decline, approximately 34 patients per million died from anesthetics in the 1990s and 2000s.
And, while deaths are rare, serious complications ranging from nerve damage to “malignant hyperthermia” can result from anesthesia. Anesthesia can also cause long-lasting mental defects. According to Scientific American, studies “suggest that a high enough dose of anesthesia can in fact raise the risk of delirium after surgery,” and that “even if the confusion dissipates, attention and memory can languish for months and, in some cases, years.” (Though it should be noted that these mental side effects are especially likely to occur in elderly patients that are past childbearing age.)
As one doctor told the AP, “you never give those medicines if you don’t have to.” Now, however, thanks to this Utah law, doctors will have to.
That is, of course, unless the courts strike down the Utah law. Under Roe, states gain greater authority to regulate — or even ban — abortions as a pregnancy progresses. Yet, even in the latest stages of pregnancy, the health of a woman seeking an abortion has primacy. Abortion is always permitted “where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
Since Roe, however, the Supreme Court has carved away much of the right protected by that decision. Most notably, in Gonzales v. Carhardt, the Court upheld a ban on a method of abortion that was viewed by many doctors and medical associations as the safest method “for women with certain pregnancy-related conditions, such as placenta previa and accreta, and for women carrying fetuses with certain abnormalities, such as severe hydrocephalus.” Thus, in effect, the Court held that lawmakers could potentially make abortion less safe for many women who seek it.
Even after Gonzales, however, the Utah law is a significant escalation in the war against Roe. After Gonzales, a woman who sought an abortion was still likely to receive a procedure that, in their doctor’s medical opinion, was the safest legal option — even if the single safest procedure was no longer legal. The majority opinion in Gonzales also claimed that “there is medical and scientific uncertainty” regarding whether to procedure at issue in that case was ever the safest medical option.
The Utah law, by contrast, imposes additional risk on women seeking abortions, despite the fact that there does not appear to be any medical benefits to subjecting a woman to unnecessary anesthesia or narcotics. It is as if Utah required women to consume a small dose of strychnine before they can receive an abortion. If the dose is small enough, it probably won’t kill the woman, but the state would still be exposing women to a very dangerous chemical without any health-related reason to do so.