‘Fetal Anesthesia’: The Creative New Way To Limit Abortion Access And Enshrine Bad Science Into Law

Abortion opponents gather in San Francisco’s Civic Center for the “Walk for Life” rally CREDIT: AP PHOTO/BECK DIEFENBACH
Abortion opponents gather in San Francisco’s Civic Center for the “Walk for Life” rally CREDIT: AP PHOTO/BECK DIEFENBACH

Montana lawmakers are preparing to debate a proposed bill that furthers the anti-abortion strategy of emphasizing “fetal pain” — the unscientific theory that fetuses are sentient after about 20 weeks of pregnancy. An increasing number of states are moving to enact 20-week abortion bans under the guise of preventing pain that scientists agree doesn’t actually exist. But Montana is taking an even more creative approach.

Under House Bill 479, drafted by State Rep. Albert Olszewski, abortion doctors would be required to administer anesthesia to fetuses past the 20th week of pregnancy. The measure states that “substantial scientific evidence recognizes that an unborn child is capable of experiencing physical pain and suffering by not later than 20 weeks after fertilization” and the state has a “compelling interest” in preventing that.

Rep. Olszewski’s bill would not technically ban abortion procedures altogether after 20 weeks of pregnancy. But, by requiring doctors to follow a medically unnecessary protocol for administering anesthesia, it could impose significant barriers to later abortions. The providers in the state still aren’t sure exactly what the legislation would mean for their day-to-day work.

“What is necessary to provide this service? Is there special equipment? Is there a level of expertise that physicians wouldn’t have? Do you need to bring in an anesthesiologist?” Martha Stahl, the CEO of Planned Parenthood of Montana, pointed out to ThinkProgress. “All of those questions remain to be answered.”

Dr. Joey Banks, a doctor who provides abortion services at a clinic in Missoula, echoed those sentiments. “For elective procedures in this state, if this were law, it would probably mean abortion providers could not continue to provide after 20 weeks at least for a while while they determined costs, safety, and provider availability,” Banks told ThinkProgress via email.

Although HB 479 is cloaked in the language of compassion, reproductive health advocates in the state say it could actually compromise women’s health. Adding fetal anesthesia to an abortion procedure would ultimately make the process more expensive and more medically risky. Later abortions are already particularly costly — reaching up to $6,531 in some states — and raising the price tag even further could burden patients. Plus, Banks noted that some women may have to travel farther to have a later abortion procedure if the clinic closest to their home doesn’t have a neonatal anesthesiologist available.

Olszewski, who is an orthopedic surgeon specializing in knee surgery, has not yet responded to a ThinkProgress request for comment about his proposed legislation.

The concept of fetal anesthesia for abortion procedures didn’t originate in Montana. It’s the next step in a carefully coordinated strategy being pioneered by pro-life activists who want to narrow the window for legal abortion services by casting the medical procedure as barbaric, and arguing that fetuses are suffering in pain.

“It’s all about highlighting this idea of fetal pain, and sort of making the fetus seem more human,” Elizabeth Nash, the states issues manager at the Guttmacher Institute, told ThinkProgress.

According to Nash, who closely tracks these type of state restrictions, the mid-2000s brought a rush of new legislation requiring abortion doctors to counsel their patients with biased information about the risks of having an abortion. Some of these so-called “informed consent” measures stipulated that doctors needed to tell women their fetus may feel pain during an abortion. A few states included provisions forcing doctors to offer their patients the option of using fetal anesthesia.

By 2010, states started going a step further and enacting 20-week abortion bans based on the spurious legal claim that states are allowed to prohibit abortions to prevent fetal pain. Several states have banned later abortions even though none of the clinics there actually offer abortion services past 20 weeks of pregnancy, which makes the laws harder to challenge. At this point, the policy is on the books in 14 different states and has increasingly been pushed on the national level, too.

There’s no evidence that fetuses can feel pain before the point of viability, and even the scientists who have pioneered the study of fetal pain never wanted their research to be used to justify abortion restrictions. When women receive fetal anesthesia for other surgical procedures, like operations on their unborn child’s organs, the drug is administered not necessarily to prevent pain but rather to inhibit the fetus’ movement.

“From a medical standpoint, this just doesn’t really make sense,” Nash said, adding that abortion opponents are “getting a lot of mileage out of unsubstantiated ideas.”

The only other state that’s ever considered mandating fetal anesthesia during abortion procedures is West Virginia. Lawmakers in Montana are the first to link the requirement to the arbitrary 20-week mark.

Fetal pain is hardly the only type of abortion measure that enshrines anti-science notions into law. Several common restrictions — including unnecessary ultrasound requirements, biased counseling sessions, mandatory waiting periods, and regulations on the abortion pill — also fall neatly into this category because they’re not justified by any medical purpose. According to a recent report from the National Partnership for Women & Families, 33 states currently have at least one of those “bad medicine” laws on the books.

HB 479 is up for debate in a health committee on Wednesday afternoon. Stahl said she isn’t sure why the Montana legislature opted for a proposed fetal anesthesia requirement rather than a more straightforward 20-week abortion ban. But she said that “it definitely should be a heads up to other states.”