Kentucky’s New Fetal Pain Law, Like Most Abortion Restrictions, Is Based on Junk Science

Kentucky's new anti-abortion law assumes — incorrectly — that a fetus can feel pain at 20 weeks.

Kathy Greene of Sumrall hold a small plastic fetus which is sometimes shown to women entering the Jackson Women's Health Organization's medical facility in Jackson, Miss., Thursday, July 23, 2009. Greene is one of a small number of abortion opponents who weekly provides an opposition presence outside the facility, tries to hand out abortion alternatives information to the women entering the facility and "counsels" the women as they enter and leave the building. A report released Wednesday, July 22, 2009 by The Center for Reproductive Rights, an abortion rights legal advocacy group, says a four-month investigation has revealed that doctors and staff at clinics in six states, including Mississippi, are facing an escalation of harassment and death threats. (AP Photo/Rogelio V. Solis)
A small plastic fetus is sometimes shown to women entering the Jackson Women's Health Organization's medical facility in Jackson, Miss., pictured here in 2009. Photo: Rogelio V. Solis/AP

The January 4 meeting of the Kentucky Senate Committee on Veterans, Military Affairs and Public Safety was brief. The group had convened, on just the second day of the 30-day session, to consider Senate Bill 5, a measure that had been labeled an “emergency.” Specifically, the bill would ban abortion after 20 weeks gestation, under the mistaken assumption that 20 weeks is the point at which a fetus feels pain, making abortion a cruel and unusual punishment.

Among those who spoke against the measure during the 35-minute meeting was a young, pregnant woman who with her husband was facing the sad reality that their wanted pregnancy might have to be aborted because of a life-threatening fetal abnormality that wasn’t detected until after the first trimester. All the tests needed for a prognosis could very well take her pregnancy up to or beyond the 20-week limit — if the law were to pass, that could either force her to abort early or continue to carry a non-viable fetus. A board-certified ob-gyn who also testified noted that both the American Medical Association and the Kentucky Medical Association oppose legislative interference into the doctor-patient relationship – and this bill does just that.

The committee asked no questions.

Republican state Sen. Brandon Smith, of Hazard, speaks with members of the media Friday, May 22, 2015, after a Franklin County, Ky., jury found him not guilty of driving under the influence of alcohol. The jury took about 10 minutes to find the Hazard Republican not guilty for driving under the influence of alcohol on the first day of the 2015 legislative session. (AP Photo/Adam Beam)

Republican state Sen. Brandon Smith in May 2015.

Photo: Adam Beam/AP

Republican Sen. Brandon Smith, the sponsor of the bill — known as the Pain-Capable Unborn Child Protection Act — told the committee he felt bad for the couple. He couldn’t remember their names, but said he could understand their pain, vaguely referencing some past personal experience that didn’t work out. Nonetheless, he said, the bill was necessary because medical science tells us that at 20 weeks a fetus can feel pain, and thus can feel what it’s like to be aborted. “We have got little ones out there that are going through some of the most awful painful experiences that you can have,” he said. “That we would even be fighting over it, amazing.”

The measure quickly passed out of the 14-man committee with little dissent, sailed through the rest of the General Assembly — controlled by Republicans for the first time in nearly 100 years — and was signed into law on January 9 by Gov. Matt Bevin. Because it was designated an emergency measure, the law went into effect immediately.

Kentucky is the 19th state to enact a 20-week fetal-pain abortion ban, a restriction that is a favorite among opponents of reproductive autonomy who would like to see abortion banned altogether. But there are two problems with the law. First, banning abortion outright before a fetus is viable outside the womb — generally understood to be at about 24 weeks — is illegal. Second, the idea that a fetus feels pain at 20 weeks contradicts the prevailing science relied upon by doctors, which is that the ability to feel pain doesn’t develop until closer to 30 weeks.

In short, the Kentucky ban and others like it are based on junk science.

Illegitimate State Interests

Forty-four years ago, on January 22, 1973, the U.S. Supreme Court delivered its landmark ruling in Roe v. Wade, a Texas case that solidified a woman’s legal right to abortion before the fetus is viable outside the womb.

While Roe may be settled law, the court has also noted that certain restrictions on abortion access may be constitutional, when the state has some legitimate interest to protect, and when the restrictions don’t place an undue burden on women seeking care. That proviso has allowed for some chipping away at the edges of Roe as lawmakers have placed an increasing number of onerous and unnecessary restrictions on access in the name of a state interest, but often by invoking questionable science or logic in order to justify them.

Lawmakers “always point to some reason why these are needed — whether it’s junk science from a medical perspective [or] psychological junk science — that women aren’t capable of making these decisions, or aren’t well informed,” said Sarah Wheat, chief external affairs officer for Planned Parenthood of Greater Texas. “It’s the basis for every single one of these anti-abortion restrictions.”

Since 2011 alone the Center for Reproductive Rights has tracked 2,100 bills seeking to restrict access to reproductive health care. More than 300 of those have become law.

That junk science has infected the criminal justice system is now a well-accepted fact, thanks in part to the 2009 release by the National Academies of Science of a groundbreaking report that raised serious questions about the scientific validity and reliability of even the most venerated forensic practices, including fingerprint analysis.

Less well understood, however, is how deeply junk science has infected reproductive rights law. For several decades, foes of reproductive autonomy have sought to curtail access to abortion with a series of restrictions that are often sold as a way to protect a woman’s health and safety — but that just as often rely on a questionable foundation.

That is what happened in Texas in 2013 with the passage of an omnibus abortion bill mandating that the state’s abortion clinics transform themselves into costly, hospital-like facilities and that all abortion doctors have admitting privileges at a hospital within 30 miles of each clinic where they practice. The restrictions were necessary, the state argued, to protect the health and safety of women seeking care. But the state did not offer any proof that the provisions would improve anything — nor that there was anything in particular that actually needed improving.

In a June 27, 2016, ruling on those provisions in a case known as Whole Woman’s Health v. Hellerstedt, the Supreme Court confronted head-on the problem of junk science in the context of abortion access. In striking down the Texas restrictions, the court found that the abortion providers who had challenged the laws brought to the table hard evidence that great harm would result from the measures — evidence that was not rebutted by the state.

In Whole Woman’s Health, “the court said, facts matter; evidence matters,” said Sarah Lipton-Lubet, vice president for reproductive health programs at the National Partnership for Women and Families (NPWF). “And that should not be a radical notion, but with the onslaught of these bogus abortion restrictions that we’ve seen intensifying over the last several years it really was groundbreaking to state it that plainly.”

In the aftermath of the Whole Woman’s Health ruling, every court that encountered restrictions similar to those in Texas blocked them. But there is no indication that states will stop trying to pass such restrictions. Texas is currently trying to mandate burial of all fetal tissue, under the guise of improving health and safety, for example, while Kentucky rushed through its fetal pain measure, to name just two of the most recent examples.

While it’s unclear whether either of those measures will withstand court scrutiny, it is worth noting that each restriction falls firmly within the framework of junk science that has so infected women’s reproductive rights over the last few decades. Indeed, most of the measures considered or passed by lawmakers fit within notable categories or share similarly flawed conceits.

A counseling room is seen during a tour at Whole Woman’s Health of San Antonio, Tuesday, Feb. 9, 2016, in San Antonio.  The Supreme Court will soon hear Whole Woman's Health’s challenge to HB2, Texas legislation that requires all abortion facilities to meet heightened requirements by becoming ambulatory service centers.  (AP Photo/Eric Gay)

A counseling room at Whole Woman’s Health of San Antonio, Texas, on Feb. 9, 2016.

Photo: Eric Gay/AP

No Regrets

Among the most longstanding myths related to abortion is that most women feel deep regret afterward and that abortion inflicts longstanding psychological damage. “This idea that there is some psychological harm that happens after a patient gets an abortion … was kind of the first wave of junk science seeping into abortion policies,” said Amanda Allen, senior legislative counsel for the Center on Reproductive Rights. Anti-abortion activists have pushed this notion since at least the 1980s, and a coterie of sympathetic doctors and academics have produced works that purport to back up the claim.

The narrative has become so pervasive that lawmakers in numerous states have adopted the line without any good science to back it up. In an effort to prove the link, abortion foes in 1987 convinced President Ronald Reagan to have U.S. Surgeon General C. Everett Koop — a noted abortion opponent — study the health risks related to the procedure. After more than a year Koop had not turned in his report; he said there wasn’t enough good evidence to cite. Although the myth of mental harm has repeatedly been scrutinized, including by the American Psychological Association, the idea that better research needs to be done has persisted.

The same cannot be said today. The results of a groundbreaking study conducted by the Advancing New Standards in Reproductive Health research group at the University of California–San Francisco found no evidence that abortion causes mental health problems in women. Known as the Turnaway Study, researchers followed nearly 1,000 women — for 5 years, across 21 states — who fell into one of two groups: those who obtained an abortion, and those who sought abortion but were initially turned away for care and had to go elsewhere or who had to carry their pregnancies to term.

“We found no evidence that women who have abortions risk developing depression, anxiety, low self-esteem or less life satisfaction as a result of the abortion, either immediately following, or for up to five years after the abortion,” ANSIRH reported. “However, women who were denied an abortion had more anxiety, lower self-esteem, and less life satisfaction immediately after being turned away.” Ultimately, those symptoms decreased and the wellbeing of both groups equalized.

“This is an incredibly powerful study,” Dr. Roger Rochat, a former director of reproductive health at the Centers for Disease Control and Prevention told The New York Times. “States will continue to pass laws that restrict access to abortion services and they will do it in part based on mental health effects of abortion. But the evidence of this study says that just isn’t true.”

SAN FRANCISCO, CA - MARCH 29:  Pamphlets are on display inside the waiting room of the Planned Parenthood Golden Gate offices on March 29, 2004 in San Francisco, California. Planned Parenthood went to court in California March 29 to fight a proposed law which could ban abortions after 12 to 15 weeks of pregnancy.  (Photo by David Paul Morris/Getty Images)

Pamphlets displayed inside the waiting room of the Planned Parenthood Golden Gate offices in San Francisco.

Photo: David Paul Morris/Getty Images

Your Right to Know

Flowing from the contention that abortion is bad for a woman’s mental health came a wave of state laws requiring women to be counseled prior to undergoing the procedure, something a woman who would undertake such a supposedly risky psychological prospect would surely need.

Twenty-nine states now have laws on the books requiring abortion providers to supply patients with state-authored counseling materials, according to a NPWF report on questionable abortion restrictions titled “Bad Medicine.” The mandated materials cover a range of topics, from fetal development to pregnancy risks, and most contain serious misinformation.

Take, for example, Texas’ Woman’s Right to Know pamphlet, which suggests not only that a fetus feels pain at 20 weeks and that abortion can be psychologically damaging, but also asserts that there is likely a link between abortion and breast cancer — a notion that has been thoroughly debunked by the National Cancer Institute and the American Cancer Society. Texas is not alone in supplying women with this kind of erroneous information. In total, counseling materials in 12 states include information about fetal pain, nine emphasize negative psychological effects of abortion, and five include the nonexistent link between abortion and breast cancer.

Even more disturbing, perhaps, is that 26 states include medically inaccurate information about embryological or fetal development in their counseling materials, according to the Informed Consent Project at Rutgers University. Considering only medical statements regarding first trimester development, the rates of inaccuracy vary wildly – from 17 percent in Alabama’s materials to a whopping 68 percent in Michigan’s materials.

“To date, federal appellate courts have upheld challenges to informed consent laws in the states. Yet these affirmations have been based on assumptions of the medical accuracy of the information provided to women,” the Project’s researchers wrote in a 2016 article in Duke University’s Journal of Health Politics, Policy and Law. “Our study suggests that this is not the case.”

Ultra-Sound of Identical Twin

Ultrasound image.

Getty Images

Ultrasound And Other Acts of Coercion

The basics of informed consent are fairly straightforward: A patient should be given medically accurate information about the benefits and risks related to a given treatment or procedure and should understand and agree to potential consequences of care.

When it comes to abortion access, however, informed consent has become increasingly complicated, and is often not based on best medical practice.

While the passage of counseling mandates was the first in a wave of abortion-related restrictions sold as necessary to ensure a woman’s informed consent, in recent years lawmakers in many states have upped the ante, requiring mandatory ultrasound procedures and pre-abortion waiting periods as integral to the process.

Indeed, the 20-week abortion ban wasn’t the only restriction Kentucky lawmakers forced through the legislature earlier this month. Simultaneously, lawmakers hastily passed a requirement that each woman not only undergo an ultrasound prior to an abortion, but also that her doctor must display the image for her, describe what is seen in the image and make audible the fetal heartbeat, regardless whether the woman needs or wants to see or hear any of it.

The bill’s sponsor, Republican Rep. Addia Wuchner, told her colleagues during a committee meeting that the measure was necessary in order to assure “autonomy” for women. If we respect women’s autonomy, she explained, then we should expect them to be informed, and she claimed this bill was about nothing more than ensuring that women are armed with as much scientific information as possible before making the decision to abort.

With passage of the law, Kentucky has become one of 14 states that have passed an ultrasound-before-abortion law and one of six that include a so-called display-and-describe provision.

As with so many other abortion restrictions, they’re medically unnecessary, especially because abortion providers as a matter of course regularly perform a pre-procedure ultrasound in order to confirm pregnancy and gestational age.  “This process does not serve a medical need; rather, it serves to impart the state’s opposition to abortion,” concluded the “Bad Medicine” report. “It is a violation of medical standards to use a procedure to influence, shame or demean a patient.”

In keeping with that theme, many states — 31 in total — have also passed laws requiring a mandatory waiting period between when a woman first contacts an abortion provider and the time the doctor is actually allowed to perform the procedure. Waiting times range from 18 to 72 hours — in South Dakota, the 72-hour period excludes weekends and holidays, meaning a woman could wait as many as 6 days before being allowed to obtain an abortion after her first clinic appointment.

As with the other restrictions, waiting periods were sold as a means of ensuring that a woman makes a well-informed decision about seeking abortion. But in practice they have done little except add extra cost and burden to the process, usurping a woman’s ability to make her best medical decisions in private consultation with her doctor.

Consider the case of a Texas woman who recently visited Planned Parenthood seeking to terminate her pregnancy. The woman, said Planned Parenthood’s Wheat, had recently been diagnosed with breast cancer when she discovered she was pregnant. She already had young children and her oncologist strongly recommended that she terminate the pregnancy. Until she did so, she would not be able to start life-saving cancer treatment. In addition to being confronted with mandatory counseling material suggesting she could contract breast cancer from having the procedure, the woman had to submit to a display-and-describe ultrasound before having to wait at least 24 additional hours before being allowed to abort — a trifecta that ultimately delayed the start of her cancer treatment.

“There’s so many indignities: It’s stigmatizing, it’s dehumanizing. There are so many aspects to these restrictions,” said Wheat. “So, it’s like on any given day, what any one person is going through [determines] how those different restrictions affect them. That’s where you really see how awful these restrictions are.”

Trapped by TRAP Laws

In addition to the many regulations that use junk science or flawed logic to justify restricting a woman’s ability to access care there is another significant group of laws that more directly target abortion providers and the facilities where they operate.

Known as targeted regulations of abortion providers, or TRAP laws, these most commonly include the kinds of measure struck down in the Whole Woman’s Health case — mandating costly facility upgrades for clinics, regulations on the maximum allowable distance between a clinic and a hospital, and laws that require hospital admitting privileges or hospital transfer agreements for abortion doctors.

Importantly, according to the CRR’s Allen, underpinning TRAP regulations is a most insidious brand of junk science: The idea that abortion is not medically safe. There’s “this mythology more broadly around abortion being unsafe, when, of course, we know abortion is one of the absolutely most safe procedures that a woman can get.”

The mortality rate for first trimester abortion is less than 1 per 100,000 procedures, for example, compared to nearly 9 deaths per 100,000 live births. The risk of major complications arising from abortion is less than .23 percent.

Ironically, it was precisely the record of safety that prevented some doctors in Texas from obtaining the hospital admitting privileges that state lawmakers tried to require. “Physicians who specialize in abortion care are thwarted by the admitting privileges requirement, not because of any deficiency in their ability to perform safe abortions, but rather because their work is so safe that they do not admit enough patients to hospitals to qualify for privileges,” Physicians for Reproductive Health wrote in an amicus brief filed with the Supreme Court in the Whole Woman’s Health case.

“Fundamentally, abortion is healthcare and, fundamentally, it is critical to women’s equality and to be able to participate fully in society. So access to quality, legal abortion care is good. That’s the fundamental principle,” said NPWF’s Lipton-Lubet. “In order to undermine that opponents of abortion really have to use these subterfuge techniques. Because if you’re telling the truth, that’s the truth you would tell.”

Top photo: A small plastic fetus is sometimes shown to women entering the Jackson Women’s Health Organization’s medical facility in Jackson, Miss., pictured in 2009.

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