Commentary: A 15-week limit on abortions would be barbaric and unconstitutional

Francisco Kjolseth | The Salt Lake Tribune Planned Parenthood advocates hold a silent protest at the Utah Capitol in opposition to SB235, which requires anesthesia for a fetus before an abortion any time after 20 weeks of gestation. Proponents argue that the legislation is not based on science, nor is it in line with standard medical ethics.

Rep. Cheryl Acton, R-West Jordan, is sponsoring a bill that would prohibit abortion after 15 weeks, a ban that she says is supported by “science.” From her comments on “Radio West” on Jan. 22, it seems that she knows very little about science, and she knows even less about the law.

First, there is no scientific proof that fetuses feel pain. Any scientist who tells you otherwise is extrapolating the neuroscience for political gains. Brain structures necessary for feeling pain form in the first trimester. But while this brain architecture is necessary for experiencing pain, it is hardly sufficient.

The truth is, we have no way of knowing whether fetuses feel pain. Pain is physiological, but it is also subjective. Even among adults, our subjective experience of pain depends on how much we have slept, how depressed we are, whether we are female or male and many other idiosyncratic factors. Just because a 10-week fetus withdraws her finger when poked, this does not mean we can prove she is experiencing pain. There are many things in nature that recoil when pricked with sharp objects. Sponges, for example. And fully grown, adult women. Does that mean that their pain is the same?

Her arguments reference her own sense of morality. To her, the abortion procedure is barbaric. To her, abortion is immoral. That is fair, but that is her opinion. She fails to answer why, in an ostensibly secular government, she gets to impose her spiritual worldview on everyone else. Utah law has made it very difficult for women to make autonomous reproductive decisions. And then, when our children are born, the Legislature repeatedly fails to dedicate resources to their education or medical care. The asymmetry in the legislative action in appalling, some might say, barbaric. Utah is not pro-life. Utah is pro-birth.

Finally, Acton said that 15 weeks is “enough time” for women to terminate. This is simply not true. She acknowledged that every year in Utah, only around 150 women terminate a pregnancy after 15 weeks. But she had obviously done no research into who these women are and why they might be terminating.

Prenatal genetic testing has drastically improved in the past decade. However, intended parents often have not received the full range of results until closer to 20 weeks’ gestation. Will this bill have the unintended consequence of rushing women into a hasty decision to terminate, before they have all the medical information?

Many women who terminate after 15 weeks have fetuses growing inside them that they desperately want to keep. Tragically, they have often just been told that the fetus, to whom they are developing intense emotional connections, has a genetic defect that is incompatible with life. Imagine being told that your fetus has a disorder that means they will likely die within days of being born, and then also being told that the law in Utah requires you to carry this fetus to term. The full effect of Acton’s bill will be to exacerbate these parents’ grief and to delay their ability to start trying for another child.

Even more discouraging, Acton had not even thought about what the enforcement mechanism would be. When pressed, she punted and said she “guessed” she would punish the all-too-frequent scapegoat: the physicians who are increasingly forced by pro-life legislators to violate their professional ethics in the service of politics.

Let’s be clear: Acton’s skimpy bill violates the Casey and Roe Supreme Court decisions. Defending a challenge to this bill would cost the state millions of dollars, which could instead be spent on disability benefits for the many families who choose to carry a severely disabled child to term.

I do not pretend to have the right answers for what parents should do when confronted with information about a very sick fetus. I imagine it’s a heartbreakingly difficult decision. So for Acton to cavalierly propose this bill, foisting her personal views on the entire population of Utah without having done her basic homework — well, that is truly immoral.

Teneille Brown is a professor of law and adjunct professor of medical ethics and humanities at the University of Utah. The opinions expressed here are her own and not necessarily those of the university or any of its departments or programs.