Scientific Testimony against the Pain Capable Unborn Child Protection Act

My name is Matthew Facciani and I am a PhD candidate in cognitive neuroscience. I oppose bill H3114 because its legislative intent rests upon a psychologically flawed interpretation of scientific data. 

I am testifying in my capacity as a neuroscientist, psychology instructor, and science educator. Recognizing good science from bad science is part of my job and I hope to explain the flawed scientific reasoning behind this bill. The main support for this bill stems from research that fetuses can react to stimuli at around 20 weeks of development. However, the scientific consensus is that such reactions to stimuli are reflexive, not a response to pain.

In other words, just because fetuses react with reflexes we associate with pain does not mean they feel pain. As Dr. Anand noted in his report in support of a similar bill, the International Association for the Study of Pain defines pain as "an unpleasant sensory and emotional experience..." The current scientific evidence supports the conclusion that fetuses can have unpleasant sensory experiences. It does not, however, support the psychological claim that these experiences are emotional. In other words, fetuses do not feel pain.

Dr. Mark Rosen, pain researcher and anesthesiologist, concludes that such reactions are analogous to the reflex from a leg when tapped by a doctor’s rubber mallet. Also, any release of stress hormones during a reflex would not necessarily indicate the experience of pain, since elevations of stress hormones also occur in the bodies of brain-dead patients during organ harvesting. These findings do not reflect feeling pain; they only reflect a sufficiently intact nervous system.

Dr. Rosen also states how the pain signal must be able to travel from receptors located all over the body, to the spinal cord, up through the brain’s thalamus and finally into the cerebral cortex to be felt. He then notes how fetuses do not have nerve fibers which extend from the thalamus and have penetrated the cortex until the third trimester which is supported in a 2010 review paper of fetal development. 

An extensive review paper on fetal pain was published in the Journal of the American Medical Association by Dr. Lee and colleagues in 2005. It remains the best available systematic multidisciplinary review on the subject of fetal pain. These researchers concluded that "Evidence regarding the capacity for fetal pain is limited but indicates that fetal perception of pain is unlikely before the third trimester." They also note how pain is an emotional and psychological experience which requires conscious recognition of a noxious stimulus. So it is highly unlikely any pain can be felt by a fetus 24 weeks or earlier in pregnancy.

Furthermore, a study by Dr. Fabrizi and colleagues in 2011 revealed that the necessary neural circuits to differentiate pain from sensation are not developed in infants until 35 weeks of age. The younger infant's neural signal indicated general tactile sensation, while the older infant's neural signal indicated actual processing of pain from the sensation.

Even if fetuses could feel pain before 24 weeks, the placenta produces biochemicals which have a sedating and even an anesthetizing effect on the fetus according to a study by Dr. Mellor and colleagues in 2005. Thus, claims of fetuses feeling pain at or before 20 weeks represent the views of a minority of researchers with no psychological scientific training, and do not have widespread acceptance in the scientific community.

Finally, a 2013 study published in the Perspectives on Sexual and Reproductive Health journal found that around one percent of abortions occur at 20 weeks or later. According to this same study, the women who had these rare abortions often had difficulty finding a provider and raising funds for the procedure and travel costs, were young and seeking work, or were dealing with an abusive partner. Thus, by banning abortions at 20 weeks, South Carolina would be harming some of its most vulnerable citizens.

In conclusion, bill H3114 is not defended by research widely supported by the scientific community as there is not substantial evidence that fetuses feel pain. The Fabrizi study provides evidence that sensation does not equal pain and the vast majority of the scientific community agrees that if a fetus could ever feel pain, it would only be possible at 24 weeks at the absolute earliest. Furthermore, the bill is foundationally flawed: It rests on the opinions of researchers who do not understand the psychological distinctions necessary to adequately address this topic. 

Thank you very much.

*This testimony was read by Matthew Facciani during the South Carolina House General Laws Subcommittee meeting on Thursday, January 22, 2015.