<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:24284.wais]
PAIN OF THE UNBORN
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
NOVEMBER 1, 2005
__________
Serial No. 109-57
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
TRENT FRANKS, Arizona JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MARK GREEN, Wisconsin CHRIS VAN HOLLEN, Maryland
STEVE KING, Iowa
TOM FEENEY, Florida
Paul B. Taylor, Chief Counsel
E. Stewart Jeffries, Counsel
Hilary Funk, Counsel
Kimberly Betz, Full Committee Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
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NOVEMBER 1, 2005
OPENING STATEMENT
Page
The Honorable Steve Chabot, a Representative in Congress from the
State of Ohio, and Chairman, Subcommittee on the Constitution.. 1
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on the
Constitution................................................... 2
WITNESSES
Dr. Sunny Anand, Director, Pain Neurobiology Laboratory, Arkansas
Children's Hospital Research Institute, and Professor of
Pediatrics, Anesthesiology, Pharmacology, and Neurobiology,
University of Arkansas College of Medicine
Oral Testimony................................................. 5
Prepared Statement............................................. 7
Dr. Jean Wright, Professor and Chair of Pediatrics, Mercer School
of Medicine
Oral Testimony................................................. 19
Prepared Statement............................................. 20
Dr. Arthur Caplan, Director, Center for Bioethics, and Chair,
Department of Medical Ethics, University of Pennsylvania
Oral Testimony................................................. 23
Prepared Statement............................................. 25
Ms. Teresa S. Collett, Professor of Law, University of St. Thomas
School of Law
Oral Testimony................................................. 27
Prepared Statement............................................. 30
APPENDIX
Material Submitted for the Hearing Record
Appendix to the Prepared Statement of Teresa S. Collett,
Professor of Law, University of St. Thomas School of Law: Fetal
Pain Legislation: Is it Viable? Pepperdine Law Review. Vol.
30:161, 2003................................................... 48
Appendix to the Prepared Statement of Teresa S. Collett,
Professor of Law, University of St. Thomas School of Law: The
Science, Law, and Politics of Fetal Pain Legislation. Harvard
Law Review. Vol. 115:2010 2002................................. 72
Prepared Statement of the American College of Obstetricians and
Gynecologists.................................................. 96
PAIN OF THE UNBORN
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TUESDAY, NOVEMBER 1, 2005
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 4 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Steve
Chabot (Chair of the Subcommittee) presiding.
Mr. Chabot. The Committee will come to order. If the
witnesses would like to make their way up to the table as I
begin my opening statement here.
This is the Subcommittee on the Constitution. I am Steve
Chabot, the Chairman. Congressman Nadler is the Ranking Member.
He will be here very shortly.
The House Constitution Subcommittee convenes today to
consider the ability of the unborn to experience pain and the
constitutionality of informed consent laws requiring abortion
providers to provide pregnant women with information on pain of
the unborn.
As President Ronald Reagan stated, ``Medical science
doctors confirm that when the lives of the unborn are snuffed
out, they often feel pain, pain that is long and agonizing.''
The topic of pain of the unborn, including whether, how
early and to what extent an unborn child feels pain, ignites
heated debate, yet 77 percent of the individuals surveyed in an
April 2004 Zogby International poll favor a law requiring that
women who are 20 weeks or more along in their pregnancy be
given information about pain of the unborn before having an
abortion.
Addressing this issue is the Unborn Child Pain Awareness
Act, which was introduced by Representative Chris Smith and
referred to the Energy and Commerce Committee. H.R. 356 defines
a pain-capable unborn child as, ``an unborn child who has
reached a probable stage of development of 20 weeks after
fertilization.'' The bill requires an abortion provider or his
agent to provide a pregnant woman with information on pain of
the unborn and anesthesia prior to aborting an unborn child
capable of feeling pain.
H.R.356 would apply to the approximately 15,000 to 20,000
abortions that are performed each year in the United States on
unborn children who are 20 weeks or more past fertilization.
Even individuals in the pro-abortion community recognize
that women should be provided information on pain of the
unborn. Nancy Keenan, president of NARAL Pro-Choice America,
stated that NARAL would not oppose the Unborn Child Pain
Awareness Act because women deserve access to this relevant
information.
A discussion of pain of the unborn must begin with
establishing what the words ``feels'' and ``pain'' mean. While
some physicians define ``feels'' to require consciousness,
others argue that observed physiological and behavioral
responses to stimuli are reliable indicators of pain.
Because the unborn are incapable of verbal expression, the
evidence for pain of the unborn must be based on anatomical,
functional, physiological and behavioral indicators that are
correlated with pain.
The pain of the unborn is not lessened by maternal
anesthesia. Anesthesia given to a mother has little or no
effect on her unborn child.
Our witnesses today will discuss the unborn's anatomical
development, physiological responses to painful stimuli, and,
ability to experience pain, perhaps even greater pain than that
experienced by older infants, children or adults. They will
explain how the evidence supports the conclusion that the
unborn experience pain by at least 20 weeks gestation, and
perhaps even earlier.
Information on pain of the unborn is relevant to a woman's
decision of whether to abort her child. Informed consent
provisions that require physicians to provide women with
information on pain of the unborn are consistent with the
Supreme Court's abortion jurisprudence. In Planned Parenthood
v. Casey, the Supreme Court upheld Pennsylvania's informed
consent provisions that required an abortion provider to notify
the pregnant woman of information on gestational age, fetal
descriptions, the nature and risks of the procedure, child
support, and abortion alternatives.
Seven Justices, Supreme Court Justices, voted to uphold
these provisions. According to the plurality opinion, ``In
attempting to ensure that a woman apprehends--or comprehends
the full consequences of her decision, the State furthers the
legitimate purpose of reducing the risk that a woman may elect
an abortion only to discover later with devastating
psychological consequences that her decision was not fully
informed. If the information the State requires to be made
available to the woman its truthful and not misleading, the
requirement may be permissible. We also see no reason why the
State may not require doctors to inform a woman seeking an
abortion of the availability of materials relating to the
consequences to the fetus, even when the those consequences
have no direct relation to her health.''
Information on pain of the unborn such as that included in
the Unborn Child Pain Awareness Act, requires abortion
providers to notify pregnant women of truthful information that
is not misleading. The requirement to provide information on
the pain of the unborn to pregnant women will enable these
women to better apprehend the full consequences of their
decisions. Such a requirement is fully consistent with the
Constitution.
My time has expired.
The gentleman from New York is recognized for 5 minutes for
the purpose of making opening statement.
Mr. Nadler. Thank you, Mr. Chairman. I want to join you
welcoming our panel today.
Mr. Chairman, while we are often at odds on issues relating
to abortion, I think we all agree that informed consent is part
of any meaningful definition of choice. That is why I have long
supported educational programs that provide young people with
the information they will need in life to make intelligent and
responsible decisions about their health, about family
planning, and so that they can become responsible citizens.
I do have to admit some trepidation, as I have mentioned in
the past, when Congress starts playing doctor, or, in this
case, neurologist. I can recall the last time Members of
Congress attempted to play neurologist, making off-the-cuff
diagnoses of a patient they had never seen and attempting to
codify their understanding of that particular patient's
condition, the entire affair was an embarrassing fiasco for
this institution. It led some of the leaders of this House and
the other House denouncing--I am sorry, denying, that they have
said what they have said, and I hope that this fiasco will
never be repeated.
The last time Professor Caplan was here to testify before
our Committee, the markup of the bankruptcy bill went late, and
we had to cancel the hearing. Later that evening, without the
benefit of a hearing, the House passed legislation dealing with
the Schiavo case. That was three bad calls in the matter of a
few hours. I would hope that we might have learned something
from that experience.
We are not, after all, considering this issue in a vacuum.
This discussion is not purely an academic exercise with respect
to when a fetus feels pain. We are not simply reviewing the
salience to satisfy our curiosity.
Although it is not within our Committee's jurisdiction, it
is no secret that our colleague, the gentleman from New Jersey,
has introduced a bill that would require health care providers
to read a script, a script written into the legislation
verbatim, stating as facts certain views on fetal development
and the question of pain, facts as stated by Congress which may
or may not necessarily agree with the latest scientific
determinations, especially as those determinations may change
from time to time.
This is an area of active scientific research, and there is
no clear consensus within the scientific community on a
particular conclusion. I am deeply concerned at the prospect
that the Congress settling scientific debates by legislative
fiat, which reminds me of the Supreme Soviet decision in
Lyshenko affair--and they made a mistake on that one. Congress
has already demonstrated that it is not particularly good at
that. We should be supporting free inquiry, scientific research
and the open and healthy doctor-patient relationship.
I have no doubt that all of our witnesses are sincere in
their views. That does not mean they are all correct in their
views. I know that Dr. Anand has published his work in peer-
reviewed medical journals, has had researchers who have come to
very different conclusions. Unfortunately the minority is only
permitted one witness, so the deck is stacked in a way that is
not particularly conducive to thoughtful inquiry. We could not
call here scientists who have reached different conclusions
than Dr. Anand.
We have invited Dr. Caplan, because he is one of the
Nation's most respected medical ethicists, in the hope that he
would be able to provide the Members of this Committee with
some guidance on how to approach these issues.
No one should, however, mistake today's hearing for the
sort of vigorous inquiry that is the hallmark of proper
scientific inquiry. Congress is not very good at doing science,
and the manner in which we conduct our deliberations is one
part of the reason.
I want to welcome our witnesses. I look forward to your
testimony.
Thank you, Mr. Chairman. I yield back the balance of my
time.
Mr. Chabot. Thank you very much.
I would like to introduce our distinguished panel here this
afternoon at this time. Our first witness is Dr. K. S. Anand.
Dr. Anand is currently appointed as a tenured professor of
pediatrics, anesthesiology, pharmacology, neurobiology and
developmental sciences in the College of Medicine, University
of Arkansas, for Medical Sciences, and is the first recipient
of the Morris and Hettie Oakley Endowed Chair in Critical Care
Medicine. He has established the pain neurobiology laboratory
in Arkansas Children's Hospital Research Institute in Little
Rock, Arkansas.
Dr. Anand received his research training as a Rhodes
Scholar at the University of Oxford. He completed fellowship
training in pediatric critical care medicine at the
Massachusetts General Hospital and was appointed as a assistant
professor at Emory University.
Dr. Anand has published more than 200 peer-reviewed
articles in addition to numerous review articles, book chapters
and editorials, and has edited five books and journal issues.
His research has received widespread recognition, and he has
received numerous extramural grants to support his research
activities from the NIH, National Endowment for Health,
Blowitz-Ridgeway Foundation and other sources. And we very much
appreciate you being here, Doctor.
Our second witness is Dr. Jean Wright. Dr. Wright is the
Executive Director and Vice President of Operations for
Children's Hospital and Women's Institute at Memorial Health
University Medical Center in Savannah, Georgia. She is also
Professor and Chair of Pediatrics for Mercer School of
Medicine. Dr. Wright is trained in pediatrics and anesthesia,
board-certified in both, and certified in the subspecialties of
pediatric critical care and anesthesia critical care.
Dr. Wright has been in academic medicine over 20 years, and
prior to going to Savannah served at Emory University and
Children's Health Care of Atlanta. Dr. Wright currently chairs
the Federal Advisory Committee on Fetal Alcohol Syndrome for
the CDC. And we welcome you very much as well, Dr. Wright.
Our third witness is Dr. Arthur Caplan. Dr. Caplan is
currently the Emanuel and Robert Hart Professor of Bioethics,
Chair of the Department of Medical Ethics and the Director of
the Center For Bioethics at the University of Pennsylvania in
Philadelphia. Prior to going to Penn in 1994, Dr. Caplan taught
at the University of Minnesota, University of Pittsburgh, and
Columbia University. He was the associate director of the
Hastings Center from 1984 to 1987.
Dr. Caplan is the author or editor of over 25 books and
over 500 pages in refereed journals of medicine, science,
philosophy, bioethics and health policy. He has served on a
number of national and international committees and consulted
with many corporations, not-for-profit organizations and
consumer organizations.
Dr. Caplan is the recipient of many awards and honors and
holds six honorary degrees from colleges and medical schools.
He is the fellow of the Hastings Center, the New York Academy
of Medicine, College of Physicians of Philadelphia, and the
American Association For the Advancement of Science. And we
welcome you here as well, Dr. Caplan.
Our final witness is Professor Teresa Stanton Collett. From
1990 through 2003, Professor Collett was a professor of law at
South Texas College of Law, where she taught various legal
courses. Since 2003, she has served as professor of law at
University of St. Thomas College of Law, teaching bioethics,
property, and professional responsibility. Professor Collett
has also served as a visiting professor at Notre Dame Law
School; Washington University School of Law in St. Louis,
Missouri; the University of Texas School of Law; the University
of Houston Law Center; and the University of Oklahoma College
of Law.
Prior to joining South Texas College of Law, Professor
Collett was affiliated with the law firm of Crowe & Dunleavy in
Oklahoma City, Oklahoma. And we welcome you here as well,
Professor.
I want to thank all the witnesses for being here this
afternoon, and we want to make sure that you are aware that
your testimony will be permitted for 5 minutes, and we actually
have a lighting system. When the red light comes on, that means
your 5 minutes is up. I won't gavel you down immediately, but
we would ask you to keep within that as much as possible. A
yellow light will come on letting you know you have a minute to
wrap up, and the green light will be on for 4 minutes.
It is also the practice of the Committee to swear in all
witnesses appearing before it, so if you would each please
stand and raise your right hand.
[Witnesses sworn.]
Mr. Chabot. All witnesses have indicated in the
affirmative.
Without objection, all Members will have 5 legislative days
within which to submit additional materials for the record.
And, Dr. Anand, you are recognized for 5 minutes.
TESTIMONY OF SUNNY ANAND, DIRECTOR, PAIN NEUROBIOLOGY
LABORATORY, ARKANSAS CHILDREN'S HOSPITAL RESEARCH INSTITUTE,
AND PROFESSOR OF PEDIATRICS, ANESTHESIOLOGY, PHARMACOLOGY, AND
NEUROBIOLOGY, UNIVERSITY OF ARKANSAS COLLEGE OF MEDICINE
Dr. Anand. Thank you. I appreciate the invitation to
testify before this Committee. I come to you as a researcher in
the development of the brain, particularly as it relates to
pain perception during fetal and neonatal life. I am not here
as a practitioner for procedures required for termination of
pregnancy or anesthetic practices related to those procedures.
I think the evidence for and against fetal pain is very
uncertain at the present time. There has been a recent
attention on this based on a review article that was published
in the Journal of the American Medical Association on August
24th. And I will first try to bring up some points to critique
that article.
That article was published by Susan Lee and her colleagues
at the University of California, San Francisco, and they have
done a systematic review of the published literature related to
this subject.
First of all, they present pain as a hard-wired system,
whereby pain impulses are conducted from receptors through
nerves and nerve pathways until so-called perception occurs in
the sensory cortex. This is an incorrect view of pain, which is
rather outdated. For the last 40 years, medical research has
shown, beginning from the gate control theory of pain, that
pain reception occurs within a multilayered system with
numerous elements of nerve fibers and cells, the functions and
the characteristics of which will change depending on the type
of pain, the context in which it occurs, as well as other
cognitive and behavioral demands at that time, so that the
processing of pain and indeed perception of pain doesn't simply
occur in the sensory cortex. It can occur at various different
levels within the nervous system.
Second, Lee and colleagues presume that the structures used
for pain perception in adults are the very same structures used
during fetal and neonatal life. The lack of development of
these structures is then taken as proof that the fetus does
not--or the preterm neonate--would not feel pain until 29 to 30
weeks period of gestation. This is again a flawed line of
reasoning.
Many years of careful research in which I have participated
has shown that the neonate, or the fetus, is not a little
adult;that the mechanisms and structures used for pain
processing are very different at different stages of
development. Indeed the nervous system will use the elements
available at that time, at a particular stage of development,
to transduce external and internal stimuli, and pain is an
inherent, innate part of this system.
These neural elements during development may not survive,
may not be maintained until maturity. They may have only a
transient role in conducting pain or pain-related information
from the periphery to the central nervous system.
Lastly, I beg to differ with the contention that the
perception of pain occurs only in the sensory or the
somatosensory cortex. For example, in conscious adults, if you
stimulate the sensory cortex, or if you cut it out completely,
it will not alter pain perception. Stimulation does not produce
pain perception; removing the sensory cortex does not block
pain perception.
So if the viability of the sensory cortex is not a
necessary criterion for pain perception in adults, why should
that be a criterion for fetus and preterm infants and neonates?
Despite this caveat, more recent research shows that there
is, indeed, alteration in the activity of cortical centers
related to sensory perception, but this may have more to do
with the content, but not the context, of the pain experience
that is being transduced.
Lastly, I would like to identify that there was ambiguous
methodology followed in this review whereby 2,100 articles were
obtained from PubMed through a detailed search strategy. And
the subsequent disconnect of selecting what evidence to include
in the data synthesis did not follow the methods of a
systematic review. If I were to review this systematic review,
it cannot be replicated, and therefore it calls into question
the scientific validity of this approach.
I appreciate the opportunity to present my views.
Mr. Chabot. Thank you very much, Doctor, and we can get
more information in the questioning period, of course.
[The prepared statement of Dr. Anand follows:]
Prepared Statement of Sunny Anand
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Chabot. Dr. Wright, you are recognized for 5 minutes.
TESTIMONY OF JEAN WRIGHT, PROFESSOR AND CHAIR OF PEDIATRICS,
MERCER SCHOOL OF MEDICINE
Dr. Wright. Thank you, Mr. Chair, Members of the Committee.
As you heard my introduction, I spent my career in the care
and anesthesia of critically ill children, and I have testified
now twice on this subject here on the Hill as well as testified
in many States. The opinions I present today are my own, and I
don't represent any group during this time.
It is interesting. My own personal sojourn as a clinician
parallels a lot of the changes that we are talking about with
respect to fetal pain. When I began over 25 years ago in my
practice, I would take a premature baby to the operating room,
paralyze that infant, not give it any pain medication, and we
would do a heart operation or abdominal operation simply
because we felt the child was too sick for anesthesia. Never in
our clinical dialogue did we ever think the child doesn't feel
pain. We just felt we couldn't give an anesthetic in a safe
manner.
By the end of the '80's, data had come out from Dr. Anand,
from Dr. Nancy Green, from Paul Hickey, from Glover, from many
others that showed us, yes, we could administer anesthetics
safely, and not only could we do it safely, it would change the
outcome of that child.
You know, it then became apparent to us, no wonder many of
these preterm babies when they came back to the neonatal
intensive care unit looked so devastated. In fact, many of them
didn't survive, which at that time sort of reinforced our
presumption that they were too sick for anesthesia. But with
time, with better science, we began to provide anesthesia for
those preterm babies, and, in fact, we saw that their outcomes
improved.
However, as the '80's progressed, new information continued
to come forward, and our day-to-day practice of pediatric
anesthesia had to change. At this point in time, it became
unconscionable for any of us to take a child to the operating
room or do something painful without providing it an
anesthetic. For us, the question was not, does the child feel
pain, or if the child feels pain, the question was, how are we
going to block the pain?
So I would say, I think this dialogue today is actually 25
years lagging behind our clinical practice.
Well, that was 20 years ago. If you came back with me to
Savannah tonight and came to our neonatal intensive care unit,
we would stand between the bed of a 23-week infant, a 26-week
infant, and you would not need a congressional hearing to
figure out whether that infant feels pain. We roll back the
sheets or the blanket, and you would look to the facial
expression, their response to the heel stick, you would
understand that.
Now we know that when Roe v. Wade was decided, 28 weeks was
the time of viability. Today we look at 23, 24 weeks. So every
single day we have a perfect window into the womb to look at
how that child processes pain, and because of the work of Sunny
and other researchers, we continue to change our bedside
practice.
Our previously held assumptions about these tiny babies had
to be set aside, and we began to understand the fight-or-flight
hormone response, their heart rate response, their sympathetic
response. We went so far as to invest in special beds and
lighting and even sound detection to minimize anything that
would be seen as stressful, even something as simple as a heel
stick.
In the 1990's, many of our NIC units did not have any
uniform approach to approaching pain in the NIC unit. Today
they do. Intensive care units have a standardized approach. We
monitor all the things that I just mentioned. We respect the
pain. We respect the stress. We do everything we can to avoid
it, and we treat it when present. Today, pain relief is an
important step to generating a healthy outcome.
Well, with that knowledge explosion in the field of pain
development in the fetus, as I mentioned, the world of
anesthesia changed, and, you know, I guess I would use a
phrase, the sound barrier, particularly in the area of partial-
birth abortion, or the discussion around partial-birth abortion
broke the sound barrier around this whole topic of fetal pain.
It was in the mid-'90's when I was here and we were discussing
that legislation and we began to talk about pain in the third
trimester, but now we know that it is not just the third
trimester, but it is as early as 20 weeks, and there is data
that shows 16 weeks and even earlier, many of these infants
feel pain and have negative outcomes from it.
You know, as a mother I look at this whole topic, and I
think about it every time I take my daughter to the doctor. Her
first question to me is, ``Mommy, is this going to hurt?'' And
as a mother I feel like it is my duty to find out that
information and to do everything I can to keep her from a
painful or stressful situation.
Well, that is what we are asking today. We are asking for
legislation that allows that question to be asked by mothers,
and for them to be given clear, scientific information that
outlines that pain development. You know, we believe that to do
less than that would not be giving good informed consent as a
clinician.
I will stop right there.
Mr. Chabot. Thank you very much, Doctor.
[The prepared statement of Dr. Wright follows:]
Prepared Statement of Jean A. Wright
BACKGROUND
I am a physician who has specialized in the care and anesthesia of
critically ill infants, newborns, children and adolescents my entire
career. I now head a children's and women's hospital within a larger
medical center in Savannah. I have testified before two Congressional
subcommittees on this or a similarly related topic, and have testified
on the same subject in several state legislative bodies. The opinions I
render today are my own, and do not represent any group.
I am trained in the specialties of Pediatrics and Anesthesia, and
am Board Certified by both. In addition, I am board certified in
Pediatric Critical Care Medicine, and similarly hold the Anesthesia
special qualifications in Critical Care Medicine. I continue to
practice medicine in addition to my administrative responsibilities.
HISTORICAL PERSPECTIVE
My own personal sojourn in medicine historically reflects the
changes in this field of medicine, and the incorporation of new
information into clinical practice. My experience and practice in this
discipline over the past 25 years mirrors that of countless others who
cared for the critically ill child. I entered the field of pediatric
anesthesia and intensive care in the early 1980's. Twenty-five years
ago, it would have been common practice to take a critically ill
premature infant to the operating room for major abdominal surgery and
provide little or no pain management. Our knowledge of pain and its
importance in the overall outcome of the child was unknown, and not
part of our clinical decision-making.
For many of the procedures, we felt the premature and newborn
infants were simply ``too sick and too small'' for anesthesia and pain
relief. We did not feel that their immature bodies could withstand an
anesthetic along with their procedure. Little did we know that in our
avoidance of anesthesia, we were in fact creating a more stressful and
more harmful environment for these vulnerable patients. We often relied
on neuromuscular blocking drugs to hold the infant motionless during
the procedure. Their motionless body did not tell the internal story of
what they were feeling and perceiving in regards to pain. Today, in
hindsight, we now understand that the infant was often returned to the
neonatal intensive care unit in a more debilitated state than when they
left it pre-operatively. We recognized then, and better understand now
that it took them days to stabilize, recover, and begin to gain weight,
and return to their pre-operative state. And we saw many infants that
never seemed to recover from the procedure.
CHANGING THE PRACTICE OF PEDIATRIC ANESTHESIA
However, in the 1980's, new information began to surface, and in
response to this new body of scientific knowledge, our clinical
practices of pediatric anesthesia and intensive care had to change.
The practice of pediatric anesthesia for the premature and newborn
infant began to incorporate the use of narcotics and other analgesics
on a regular basis. Soon it became unacceptable to consider taking an
infant to the operating room for major heart or abdominal surgery
without recognizing the stress response this would generate in the
infant, and developing an anesthetic plan that would safely block or
blunt those responses. By the end of the 1980's, the work of Dr. Anand,
Dr. Hickey, Dr. Ainsley-Green and others surfaced in a myriad of our
most respected American and British Journals. Their elegant work, along
with the works of others, demonstrated that this pain response in the
infant was not an inconsequential byproduct of a surgical procedure
that could be ignored at the anesthesiologist's whim or personal
choosing. For us practicing in the field, it was not a question of ``if
the premature or term infant felt pain'' . . . it was ``how do we block
the pain to improve the child's outcome.'' For us the question became
``how,'' not ``if.''
EXTENSION TO CARE IN THE NEONATAL INTENSIVE CARE UNITS
That was twenty years ago. Today, if you walk with me in our
neonatal intensive care unit, you will see the same concern exhibited
for our tiniest of all infants. The concern about how to block pain,
how to eliminate stress, how to improve survival, and how to minimize
the complications that frequently accompany premature infants is on the
forefront of the care-givers mind. Viability for the premature infant
has long since passed the 28 week gestational age definition that
existed when Roe v. Wade was decided. For some infants, viability has
been pushed back to 23-24 weeks. And so many of our neonatal units now
have infants of 23 weeks and older gestational ages.
Because of the work of many researchers in the fields of pediatric
anesthesia, their scientific inquiry led to a change in practice. Early
in the 1990's, many neonatal units considered the infants too weak or
sick for pain-relieving medications. Our previously held assumptions
are replaced with first hand observations of these tiny patients, with
monitoring of the hormones released from the neuro-humoral axis (our
fight and flight hormones), and with a clearer understanding of the
development of pain pathways in the fetus. We invest in expensive beds
to eliminate noise and pain, and in a care plan that minimizes painful
sticks and pokes. We now regard even the pain of a simple heel stick
for a routine blood sample.
In the early 1990's many neonatal intensive care units did not have
uniform approaches to minimizing painful events, or pre-treating
infants prior to painful and stressful procedures. Today they do. We
are so mindful of even the stress of noise and touch, that neonatal
intensive care units monitor the sound level, and minimize the number
of times an infant is handled, poked or stress, . . . all in the name
of decreasing pain and stress, and improving clinical outcomes. We
respect the pain and the stress, we do everything we can to avoid it,
and we treat it when present.
Today, pain relief is an important step to generating a healthy
outcome. Today with the survival of 23 and 24 week infants, we no
longer speculate as to whether they feel pain. We understand it, try to
avoid it, and treat it when appropriate.
the disconnect between pain in the neonate and pain in the fetus
With the knowledge explosion in the field of pain development in
the fetus, the world of pediatric anesthesia and neonatal intensive
care changed. Why did this same information not change the world for
the unborn? To regard pain in the unborn required that we consider pain
during in utero surgical procedures, but also pain to the unborn during
an abortion. Furthermore to recognize the unborn's ability to perceive
pain would require that we disclose that information to the mother
prior to the procedure as part of the informed consent. Perhaps, with
that information at hand, the mother might change her position
regarding an abortion for her unborn. Therefore the scientific
information regarding pain in the unborn was not integrated with the
dialogue around the procedures of abortion.
In the mid 1990's the discussion around partial-birth abortion
broke the sound barrier around fetal pain. A discourse followed around
whether the infant felt pain, whether maternal anesthesia could or
would treat the pain, and whether informed consent for the procedure
should disclose the possibility of pain to the unborn. Discussions on
partial birth abortion brought into focus the developmental realities
of the infant in the 3rd trimester, and juxtaposed that stage of human
development with its ex-uterine counterpart, the preterm infant.
Further scientific discoveries over the past decade have only served to
underscore the anatomy and physiology of the pain pathways in the
unborn and preterm infants. Now several states have begun to wrestle
with the legislative aspects of both protecting their most vulnerable
subjects from pain, and from informing their mothers of its presence
and its need for treatment.
THE ROLE OF INFORMED CONSENT
As a mother myself, every procedure I face with my own child is
preceded by her first question, ``Mommy, will this hurt?'' It is my
natural maternal response is to try to avoid all forms of pain and
suffering for my child. As a parent I want to know about the
possibility of pain, and my child (if old enough) wants to know as
well. But for the child unable to speak, or unable to understand the
upcoming flu shot or laceration repair, the parent stands in the gap
gathering clinically relevant information, and exercising prevention
and protection against harmful or painful situations. It is our
question to ask, ``Will my child feel pain?''
Parents are entitled to this information for their children. They
need it explained in a clear and meaningful way that they as laypeople
can understand. This standard exists for children born; now we raise
the standard and ask that it exist for those unborn. ``Will this
surgery or procedure on my premature baby cause pain? What will be done
to alleviate the pain and suffering?'' We should answer those questions
as clearly for procedures concerning the unborn as the born.
WHAT WILL WE TELL THEM?
Beginning as early as 6 weeks of development, tiny pain fibers
pepper the face and oral mucosa. The spread of these unique fibers
proceeds in a head to toe fashion until by the 20th week, they cover
the entire body. Not only do these fibers exist, they do so with
greater density per sq inch than in the adult.
These fibers will connect with the spinal cord, and then connect
with fibers that ascend to the thalamus and cortex. By the 10-12th
week, the cortex is developing, and by the 15th week, the fibers from
below have penetrated into the cortex.
Studies at 16 weeks and beyond show hormonal responses to painful
stimuli that exactly duplicate the responses that the infant and adult
possess. The critical difference is that the unborn lacks the ability
to modulate itself in response to this pain. Therefore, the responses
of hormones to painful procedures show a 3-5 x surge in response. This
ability to down-regulate the response in light of painful stimuli will
not exist until the unborn child is nearly full term in its gestational
age. Further studies demonstrated that the magnitude of pain response
reflected the magnitude of the stimulus and blocking the pain receptors
with narcotics, blocked the hormonal surge. By 19-20 weeks, EEG
recordings are readily documented, and somatosensory evoked potentials
(SSEP) are seen by 24 weeks.
After 20 weeks of gestation, an unborn child has all the
prerequisite anatomy, physiology, hormones, neurotransmitters, and
electrical current to ``close the loop'' and create the conditions
needed to perceive pain. In a fashion similar to explaining the
electrical wiring to a new house, we would explain that the circuit is
complete from skin to brain and back. The hormones and EEGs and
ultrasounds record the pain response, and our therapies with narcotics
demonstrate our ability to adequately block them. Therefore, any
procedure performed on an unborn child after 20 weeks should take this
into consideration.
<bullet> ``Can the unborn fetus feel pain at this stage of
development,'' we would be asked.
<bullet> ``Is there something that can be given to alleviate
the pain?''
<bullet> And we would answer, ``Yes,'' to both.
WHY ISN'T TREATING THE MOTHER ENOUGH FOR THE CHILD?
Most obstetrical anesthetic care plans use spinal, caudal, epidural
or other forms of nerve blocks to interrupt the cause of pain and the
perception of pain. We refer to this as regional anesthesia. The
sensory nerves that innervate the abdominal wall and the lower pelvic
structures are anesthetized in the same manner that a tooth is numbed
by a nerve block with Novocain at the dentist. The mother's specific
nerves, or nerves that innervate the perineum, are blocked by these
regional anesthetic techniques. While this serves as excellent
anesthesia for the mother, it provides no anesthetic relief to the
unborn child.
Advances in intra-uterine surgery have required more detailed
thinking about pain management of the unborn during these operations.
In essence, two anesthetics are planned. One for the mother and one for
the unborn child. If an intravenous anesthetic is used, such as a
narcotic, it must go through the mother's circulation, and then enter
the fetus' circulation, and the reach the fetal brain, in order to
achieve pain relief. Dosing via this route must be such to achieve a
safe level of anesthetic in the unborn. Similarly, doses of narcotics
may be given directly into the amniotic sac, or into the vein of fetus.
Experience with premature infants shows us that the dose of narcotic is
small, and can be given safely, and is inexpensive, and is effective in
blocking pain and improving outcomes.
CONCLUSION
The development of the perception of pain begins at the 6th week of
life. By 20 weeks, and perhaps even earlier, all the essential
components of anatomy, physiology, and neurobiology exist to transmit
painful sensations from the skin to the spinal cord and to the brain.
Infants in the neonatal intensive care unit give us a clear picture
into life in the womb for the unborn fetus age 23-40 week gestation.
Our understanding of the presence of pain, and the need to clinically
treat this pain in the premature infant leads us to understand the
presence of pain, and the need to treat pain in the unborn fetus of the
same gestational age.
Our conscience as clinicians requires us to apply the same
standards of informed consent that we would to any other patient in a
same or similar situation. We no longer can ignore the fact that
maternal anesthesia treats the mother's pain perception during these
procedures, but leaves the unborn with no pain protection.
Our knowledge of this field has changed our clinical practice and
now the legislative issues must change as well.
Mr. Chabot. Dr. Caplan, you are recognized for 5 minutes.
TESTIMONY OF DR. ARTHUR CAPLAN, DIRECTOR, CENTER FOR BIOETHICS,
AND CHAIR, DEPARTMENT OF MEDICAL ETHICS, UNIVERSITY OF
PENNSYLVANIA
Mr. Caplan. Thank you, Mr. Chairman and Members of the
Subcommittee, for the opportunity to testify before you in this
legislation. I know you have the written testimony there, so I
am going to narrow my remarks down to four subjects.
First, is there consensus on fetal pain? I am not an expert
on fetal pain like some on the panel here, but I have access to
Children's Hospital of Philadelphia, which is an institution
that has many experts in fetal pain there. And so when this
hearing came to my attention, I went over and asked them what
they thought about fetal pain, when it begins, when is the age
of onset, and it is clear to me that there is not a consensus.
Secondly, I want to say a word about risk and benefit as
presented in the script that is in the legislation concerning
risk to mothers of the administration of pain-relieving
analgesics and anesthesia to the fetus.
Third, I am just going to say a word about is it a good
idea to get use a script to get informed consent, which is
perhaps of less interest to some on the Committee, but is of
keen interest to me in terms of trying to make sure that all
Americans get informed consent in research and therapy; and
lastly, whether it is a good idea for Congress to come into
this area with mandates about how to achieve certain social
goals.
Firstly, as I said, I had an opportunity to go over to this
hospital. It is full of all kinds of experts, and I basically
just asked around to my colleagues, and I got answers back that
were all over the place, from 20 weeks, somebody reported they
thought perhaps younger. Other people said absolutely not until
24, 26 weeks; all kinds of comments about brain development,
all kinds of ideas about what is meant by pain.
I looked in the literature I would tell one of my students
to do in pursuing informed consent, and as we have heard, there
is a wide spectrum of opinion about when pain begins. The JAMA
article that Dr. Anand reports about sets the level at 28 weeks
based upon a thorough review in a leading medical journal.
Other documents and reports from the United States and Britain
said 26 weeks, 24 weeks; some say 20 weeks.
It doesn't matter to me in a sense whether a particular
study is right or wrong or beyond critique. That is what
scientists do. What matters to me is there is no clear-cut
consensus out there. So to mandate a triggerpoint and say this
is when it has to be done seems to me to not be consistent with
what Congress ought to be doing about invoking the power of
science to serve a social or an ethical goal even if it is an
admirable or perceived as an important goal. I don't think the
consensus is out there to support what is claimed in the
legislation.
Secondly, on matters of risk/benefit, there is a lot to be
said there. But let me narrow it down to one item: What is told
to the mother about the risks that she faces if somebody tries
to administer pain-relieving mechanisms to the fetus directly
through her body. When this is done, it is usually in the
context of fetal surgery.
Again, I have been involved in many review boards that have
tried to assess the ethics of fetal surgery. They are tough
because you are risking two lives. Normally the risks involved
in fetal anesthesia in utero are acceptable because you are
trying to save the fetus, you are trying to help the person
have a very much wanted child, and mothers will take a lot of
risk. But in context we are talking about here, the exact
phrasing in the legislation, there may be risk in the
administration of anesthesia to the mother, is not at all
adequate to what is going on relative to direct administration
of pain relief prior to abortion.
So I would urge the Committee to take a close look there
and ask the question, is that an adequate informed consent
about risk to mother, and will women, in fact, be weighing the
risk and benefits appropriately by talking about the other uses
of fetal anesthesia which come from the fetal surgery setting,
not from situations where someone is going to try and directly
go to the fetus from the outside? That is going to be a pretty
risky activity not adequately captured, I would suggest, in the
legislation right now.
The third point I wanted to mention is just whether scripts
make sense for informed consent. And I don't know of any
situation in American health care where we give people scripts
and say read them and get informed consent to research or
therapy. When people do do that, we actually yell at them and
say that isn't informed consent.
Informed consent is a process. Let me put it simply: Not
every mother is the same. Not every mother is going to have the
same health background. Not every fetus will be the same; some
will have terrible genetic deformities, some are going to be
hale and hearty. The situations are not well captured by a
script, and if you try to achieve informed consent just by
reading off a script, I would tell you that is not the standard
of ethics that ought to prevail in the United States today in
any setting.
So it seems to me the script idea is suspect if what we
really want to do is get a good informed consent. And for the
reasons I mentioned, the script that is there perhaps is
inadequate.
Lastly, I think it is not a good idea for Congress to try
and practice medicine. I understand the subject is one of grave
concern to many people, but it seems to me physicians hold
different views about this matter. What we have to do is
encourage them and urge them to give information to their
patients, to have those dialogues about what they deem
important and appropriate to protect the health, welfare and
comprehension of their patients. I don't know if that comes
well from Congress.
Mr. Chabot. Thank you very much, Dr. Caplan.
[The prepared statement of Mr. Caplan follows:]
Prepared Statement of Arthur L. Caplan
Thank you Mr. Chair and members of this Committee for the
opportunity to testify before you on the proposed legislation which
would require that women seeking abortions be informed about the pain
to be experienced by their unborn child. My opinion is that this is not
legislation that the House should enact. I will present a number of
ethical issues that the committee may wish to consider as it examines
this legislation.
I will organize my testimony as follows: first, I will address the
presumptions behind the proposed legislation and the comment on what is
known or in dispute about those presumptions, second, what informed
consent requires in terms of risk and benefit disclosure, third, I will
offer my opinion as an expert on the ethics of informed consent on the
advisability of enacting legislation which mandates the content of a
script be read to patients by their physicians, and, lastly, I will
offer some comments on the advisability of Congress inserting itself
into the practice of medicine in the United States and the morality of
intruding into the doctor/patient relationship.
FETAL PAIN
The proposed legislation before the House contends that unborn
``children'' have the physical structures necessary to experience pain
at the age of twenty weeks of development. There is also a contention
that giving anesthesia or analgesics to a pregnant woman does not
diminish the pain capacity of an unborn fetus. And it maintains that
medical science is capable of reducing fetal pain by delivering
anesthesia or pain-reducing drugs directly to the ``pain capable unborn
child.''
These are the findings used to them justify an unprecedented
requirement in the history of American medicine--the provision by
telephone or in person of a required statement by a physician or the
physician's agent to offer the option of the use of anesthesia or pain-
reducing drugs ``to the pain capable unborn child.''
The question this committee must carefully consider is whether
there is as a matter of empirical fact consensus about when a fetus is
capable of feeling pain. If the rationale for mandating disclosure
about techniques to minimize fetal pain prior to abortion rests on
science and not the whim or presumption (and I use those terms
intentionally) of non-scientists and non-physicians then there must be
clear consensus on the part of the medical profession that at twenty
weeks a fetus is pain-capable.
This is an enormous body of evidence which shows that the
presumption of medical consensus does not exist about the question of
when a fetus becomes pain-capable.
A variety of groups and commissions in the United Kingdom and
researchers in the United States and other nations have, in recent
years, examined the question of when a fetus can feel pain. None of
them has reached a consensus that is reflected in the proposed
legislation.
For example, five years ago the Commission of Inquiry into Fetal
Sentience in the House of Lords in England looked at the question of
when can a fetus feel pain. They found that a fetus may be able to
sense some ``form of pain sensation or suffering'' when the cortex has
begun forming connections with the nerves that transmit pain signals.
This occurs ``after 23 weeks of growth.''
``By 24 weeks after conception the brain is sufficiently developed
to process signals received via the thalamus in the cortex.'' The noted
that, ``While the capacity for an experience of pain comparable to that
in a newborn baby is certainly present by 24 weeks after conception,
there are conflicting views about the sensations experienced in the
earlier stages of development.''
A year later another distinguished group of physicians from the
Royal College of Obstetricians and Gynecologists in the United Kingdom
examined the same issue. The panel consisted of experts in fetal
development, law and bioethics.
The group determined that a fetus can only feel pain after nerve
connections became established between two parts of its brain: the
cortex and the thalamus. This happens about 26 weeks from conception.
Professor Maria Fitzgerald of University College London, author of the
working group's report, said that ``little sensory input'' reaches the
brain of the developing fetus before 26 weeks. ``Therefore reactions to
noxious stimuli cannot be interpreted as feeling or perceiving pain.''
W.G Derbyshire writing in the Bulletin of the American Pain Society in
August, 2003 basically concurred with the view that the fetus becomes
pain capable at 26 weeks.
This year a meta-study--a review of existing medical studies into
fetal pain--was published in the Journal of the American Medical
Association (JAMA). The paper concluded that in reviewing all recent
published studies that a fetus's neurological pathways that allow for
the ``conscious perception of pain'' do not function until after 28
weeks' gestation.
It is possible to criticize each of these studies and reports. And
there are many more such reports and studies with different
conclusions. But that is precisely the point the Congress must
carefully reflect upon before enacting any legislation pertaining to
fetal pain.
There is no consensus among the medical and scientific experts
about precisely when a fetus becomes pain-capable. Some put the point
at 28 weeks. Others say 26 or 24 and still others younger still. But,
without a clear consensus legislation mandating that a health provider
or physician represent something as a fact which is not known to be
true or agreed upon by the majority of medical and scientific experts
as valid would not only be poor public policy it would set a terrible
precedent for other topics where Congress might choose to mandate
disclosures about ``facts'' for political or even ethical reasons which
have no foundation in science or medicine.
Mandating the provision of information as factual or as the
standard of care or as a matter of consensus among experts when the
information is none of these could open the door to an enormous
slippery slope regarding what those seeking health care are told. In
order to achieve political ends even well-intended ends it is
exceedingly dangerous as history shows to try and bend science to serve
political goals.
CONSENT, RISK AND BENEFIT
If Congress decides to mandate the provision of information to
women about fetal pain prior to abortion then it will have to carefully
consider the content of what is being mandated and whether it
adequately reflects the standards of full disclosure of risk and
benefit as well as the provision of information about all options and
alternatives.
In creating a standard of disclosure about fetal pain and the use
of anesthesia it will be necessary to disclose whether or not existing
techniques are known to relieve fetal pain, at what age of fetal
development and what evidence exists to support such claims.
In notifying women that anesthesia administered to them will not
provide pain relief to their fetus again it will be necessary to state
with more clarity then appears in this legislation why that is held to
be so as a matter of medical consensus and what the probability is of
the statement being wrong. Informed consent will also require a more
careful and precise delineation of the risks of anesthesia to the woman
if it is directly administered to the fetus. The risk of fetal
anesthesia is usually viewed as trivial since they are usually
encountered during efforts to use surgery to repair a life-threatening
risk to the fetus. They become far less trivial when placed in the
context in which death to the mother becomes a possibility with
uncertain benefit to the fetus. And some discussion will have to be had
about the risks to the woman's health of continuing various stages of a
pregnancy versus terminating them depending upon her own health and
medical condition.
None of these elements of risk and benefit appear in the mandated
information to be disclosed by the proposed legislation. I doubt
whether there are many IRBs in the nation which would approve the
content of the disclosure as adequate to the standards of informed
consent that have come to be expected for new, innovative and untested
procedures in medicine.
MANDATING THE CONTENT OF INFORMED CONSENT
One of the most troubling aspects of the proposed legislation is
the concept of the government requiring a mandated script or formula be
used to secure informed consent in a doctor-patient relationship or
health care provider-patient relationship. I know of no other area of
health care where Congress or a state government has mandated the
content of informed consent.
It is hard to justify a fixed script since every patient is
different, not all pregnancies are alike, not all fetuses have the same
capacities at the same age of development and not all women face the
same set of risks or have the same ability to understand and process
information. Informed consent is not a formula--it is an individualized
communication between provider and patient. To mandate that one size
will fit all when it comes to the issue of fetal pain and what might be
done about it is to fly in the face of decades of medical experience
about informed consent as well as numerous court cases in which judges
have found that simply reading a piece of paper or running through a
standard template does not satisfy the requirements of informed
consent.
INTERFERENCE WITH THE PRACTICE OF MEDICINE AND
THE DOCTOR/PATIENT RELATIONSHIP
It is my opinion that mandating the specific nature of what must be
communicated to a woman considering an abortion or any other medical
procedure is an unwise interference with the practice of medicine by
Congress. One may well wish to discourage women from choosing abortions
but forcing providers to read claims about fetal pain is showing no
respect for the ability of the medical profession to present
information about pregnancy, abortion and fetal pain to women.
Moreover, since different physicians hold different views about fetal
pain and about the ability to control that pain and since different
providers will have different skills when it comes to the safe
administration of anesthetic agents or anesthesia to women or fetuses
it is overreaching for Congress to insist on precisely what each
provider must say to each woman prior to an abortion or any other
medical procedure.
In summary there are many issues this committee and Congress must
consider before moving forward with the proposed legislation on Pain of
the Unborn. There is no consensus among experts about when a fetus
becomes pain capable. There is no consensus about the efficacy of
existing agents to relief pain in a fetus. There is no single standard
that can be set as to what the risks are of attempting to administer
pain relief directly to a fetus. This makes it difficult for Congress
to claim a sufficient foundation for claims about the pain capabilities
of the fetus at various stage of development.
It is also difficult for Congress to mandate the content of
informed consent without reducing consent to the provision of a
``boilerplate'' set of facts--something which we have been advising
doctors not to do in the name of informed consent for many decades.
And even with the best of motives intruding into the doctor-patient
relationship when the facts are unclear and the risk unknown opens the
door to slippery slope with enormous ramifications for the future
practice of medicine. This is a door that ought be opened with the
greatest of care and caution if at all.
Mr. Chabot. Professor Collett, you are recognized for 5
minutes.
TESTIMONY OF TERESA S. COLLETT, PROFESSOR OF LAW, UNIVERSITY OF
ST. THOMAS SCHOOL OF LAW
Ms. Collett. Thank you, Mr. Chairman, Mr. Nadler and
Members of the Committee.
I am the author of one of only two existing Law Review
articles on this subject. It was published in Pepperdine Law
Review in 2003, and I wrote on this topic because, in fact, it
was a topic that I anticipated various State legislatures and,
in fact, Congress legislating on.
When you look at the most recent abortion textbook for
medical schools, edited by Maureen Paul, when she has a chapter
on counseling of abortion patients, they speak specifically
about the concern that abortion patients express about whether
or not the fetus will feel pain during the procedure. And the
advice is given in that particular chapter by Ms. Baker that in
order to respond to this concern on the part of women seeking
abortions, that women should be given information about fetal
pain.
In doing research for that particular article, what I found
was, in fact, in the United Kingdom, the Royal College of
Obstetricians and Gynecologists at the direction of Parliament
did an extensive study of this topic under the direction of Dr.
Glover, who describes herself as a pro-choice physician, and
determined that they should adopt a protocol that requires the
use of fetal anesthetic or feticide through the use of
potassium chloride or digitalis or some other chemical directly
to the heart of the fetus prior to performance of abortion or
fetal anesthetic prior to any fetal surgery at age 24 weeks.
That protocol then in 1997 was brought into question at the
direction of the British Medical Research Group, and they are
now discussing lowering it to age 20 weeks.
In fact, the British Medical Association directs that even
if there is no incontrovertible evidence, the consensus that
Dr. Caplan would demand, that fetuses feel pain, the use of
pain relief, when carrying out invasive procedures, may help
relieve the anxiety of parents and of health professionals.
That last clause, in fact, is what motivated the province of
Alberta, our neighbors to the north, to adopt their
professional protocol that requires the use of feticide for any
abortions at age 20 weeks prior to the performance of an
abortion.
Mr. Nadler. Use of what did you say?
Ms. Collett. Feticide, the use of digitalis or potassium
chloride directly to the heart of the fetus prior to the
abortion. The reason for that, Representative Nadler, is
because of the techniques of abortion that are used most
commonly at that point or beyond that are either dismemberment
abortion or the use of the D&E or the D&X abortion, which I am
sure Members of this Committee are familiar with, or saline
abortions on rare occasions. They are not used very often
anymore because of the other two procedures being preferred,
according to various CDC statistics. Because of the pain that
we may anticipate with either of those procedures, Alberta
requires that physicians induce the death of the fetus prior to
that. Because of this concern on the part of women, informed
consent would require that they be informed.
The final piece of evidence I would bring to the attention
of this Committee comes not from foreign jurisdictions, but,
interestingly enough, from the most recent trial in California
on the Federal partial-birth abortion ban where Dr. Katharine
Sheehan testified as an expert witness on behalf of the
plaintiffs in challenging the ban, where she said that as
medical director for the Planned Parenthood San Diego clinic,
that it was the practice of that clinic to always offer to
engage either in feticide or to offer fetal anesthetic for any
abortion after--at the period of gestation of 22 weeks or more,
and that she had never had a patient decline it.
This is an issue that women who chose, because of perhaps
tragic circumstances, to go forward with abortion are concerned
about.
Frankly, of all of the many issues related to abortion, if
there is one that we can find common ground on, surely it is
the issue that where necessity, as the woman perceives it,
drives her to this, there should be no unnecessary suffering on
the part of the unborn, and that women should have the
opportunity to know that there is at least a respectable body
of research that suggests that that possibility exists.
Thank you.
Mr. Chabot. Thank you, Professor Collett.
[The prepared statement of Ms. Collett follows:]
Prepared Statement of Teresa Stanton Collett
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Chabot. I now recognize myself for 5 minutes for the
purpose of asking questions.
I would just note that we are not talking about an
insignificant number of abortions after 20 weeks. Each year in
this country, I understand there's--depending on the figures,
it is somewhere up to 20,000 or so of these types of abortions
that take place after 20 weeks.
Professor Collett, let me begin with you if I could, and I
will get to the heart of the matter, cut to the chase so to
speak.
In your opinion, are informed consent provisions requiring
that information on fetal pain and anesthesia be given to
pregnant women considering an abortion consistent with the
Supreme Court's abortion jurisprudence?
Ms. Collett. Yes. Casey was quite clear about that. You
read a portion of the
Casey plurality opinion, and they go beyond that to give
the example of, we think it would be constitutional for the
State to require in order for there to be informed consent to a
kidney transplant operation that the recipient be supplied with
information about the risks to the donor as well as the risks
to himself or herself. It is quite clear that simply an
informational requirement as has been proposed would pass
constitutional muster.
Mr. Chabot. Thank you.
Dr. Anand, let me turn to you next if I can. In your
opinion, at what point does an unborn child likely experience
pain, and what evidence best supports that opinion?
Dr. Anand. Thank you. This is a question that is hotly
debated, as Dr. Caplan pointed out, and it is not very clear
from a summary of the evidence as it really does not meet the
criterion of something that can be turned on or turned off.
The development is a slow and continuous process, and
different centers of the brain participate in sensory
perception at different stages, so it is very unclear and hard
to pinpoint as to exactly when. Yesterday the fetus did not
feel pain; today the fetus does feel pain. And it is unlikely
that that happens.
What possibly occurs is a gradual increase in the ability
of the fetus to recognize some stimuli which may cross a
certain threshold of nociception and for those stimuli to be
transduced at some points.
My opinion is, based on evidence suggesting that the types
of stimulation that will occur during abortion procedures, very
likely most fetuses at 20 weeks after conception will be able
to perceive that as painful, unpleasant, noxious stimulation.
Mr. Chabot. Thank you. And is it your opinion that the pain
perceived by the unborn is possibly more intense than that
perceived by term newborns or older children?
Dr. Anand. No. There is--that is not my opinion. And I
really don't have any data to suggest that that could be true,
or the other way. There is----
Mr. Chabot. Have you heard that opinion expressed by others
in your field?
Dr. Anand. There has been some data to suggest that in
preterm neonates, there is a lower threshold to pain than in
full-term neonates and in older children or adults. Whether we
can extend that back into gestation is not known at this point.
Mr. Chabot. Thank you.
Dr. Wright, let me ask you, could you please describe some
of the responses to noxious or offensive or unpleasant stimuli
that you have witnessed in preterm infants?
Dr. Wright. Sure. You know, we know that these pain
receptors are unique. When you look at them under a microscope,
they don't look like any other kind of cell, and they start on
the face, and as doctor Anand said----
Mr. Nadler. Is that true in all stages or only for
neonates?
Dr. Wright. Excuse me, sir?
Mr. Nadler. Were you making that as a general statement or
only for neonates?
Dr. Wright. I haven't finished the sentence, sir, so I am
not quite sure what you are interrupting.
Mr. Nadler. When you said these pain receptors are unique,
they don't look like any other kind of cell.
Dr. Wright. Right. They start at 6 weeks of gestation. They
cover the entire face even more densely per square inch than
adults and cover the entire body. So by the time this baby is
20 weeks of gestation, there are these pain receptors over the
entire body, the entire mucosa, the exact same kind that we
have as full-term babies and we have as adults. Is that what
you are asking?
And because that pain fiber sits there, it connects with
the spinal cord and, most importantly, sends messages, sends
impulses to the bran to those higher levels and back down. When
we put on a clamp on a toe, when we do a heel stick, that is
probably the most common thing we do in the neonatal intensive
care unit, take a lancet, hit the heel for blood, squeeze that
little heel and put it on a piece of blotter paper and insert
it in a test tube, those children will withdraw. That is not
just a knee-jerk reflex. That's an integrated, full arc up
through the brain and back. They grimace, they pull back.
Even the studies of children in utero when they had
repeated liver samples or transfusions done either through
their liver or through their umbilical cord, those children
positioned themselves to avoid noxious stimuli. Dr. Anand used
a fancy word, nociception. We would say in Savannah just
painful or obnoxious stimuli. They reposition themselves that
way.
So to a lay person standing next to a bed, there is no
question that that is pain. It is not a hiccup, it is not a
reflex. You know, we recognize it for what it is.
Mr. Chabot. Thank you very much. My time has expired.
The gentleman from New York is recognized for his time as
well.
Mr. Nadler. Dr. Anand, do you agree that there is still no
consensus within the field on the question of when the fetus
starts perceiving pain?
Dr. Anand. Yes, I did.
Mr. Nadler. Thank you.
Also, Dr. Anand and I think Dr. Caplan, while some States
have pursued the script approach, the Federal Government so far
has not. Do you think we ought to require doctors to read
scripts written by Congress on this or other issues?
Let me just broaden that a bit. I have considerable
sympathy for a lot of the ideas in this bill and in what I am
hearing. The problem I have is Congress directing a specific
script which says Congress makes this medical finding. Would
you think that that is a good approach, or might it be a better
approach to simply say that doctors shall inform the patient or
the patient--the prospective mother of what the current state
of medical knowledge is in his or her opinion and tell her pros
and cons of using anesthesia?
Dr. Anand?
Dr. Anand. I agree with you. I think there is consensus in
the medical and scientific research community that there is a--
there is no possibility of pain perception in the first
trimester. There is uncertainty in the second trimester. There
is no discussion in the third trimester. There is consensus
that pain perception is fully developed and----
Mr. Nadler. I am asking you about the script in particular.
Dr. Anand. With regard to a script, I agree that each
medical encounter has specific factors that determine the way
in which an interaction occurs between the health care
professional and the patient, and so having a script, I think,
will be counterproductive in that situation.
I think, however, the health care professional must have
this professional responsibility to provide the information
that is available at that time.
Mr. Nadler. So a bill that simply said the medical
profession should recognize--well, it should exercise its
normal responsibility would be preferable?
Dr. Anand. Yes.
Mr. Nadler. Thank you.
Dr. Caplan.
Dr. Caplan. Well, I think the use of a script to achieve
informed consent is a mistake, and I think it is a mistake to
have Congress do it.
I think that the script that is in the bill is a clear
example of this. It asserts more consensus than is true about
fetal pain. It doesn't allow the nuance of talking to different
women with different backgrounds, different educational levels,
and different medical situations, different health situations.
It won't be equivalent risk to give fetal anesthesia to a woman
who has diabetes and a bunch of other complications and high
blood pressure and 40 years old and as it would to somebody who
is 22 and very healthy. Using scripts is not the way to achieve
informed consent in terms of the nuance of what has to happen
in medical care.
Last comment I would make is it seems to me that what we
want to do is encourage honest discussion, open discussion
about fetal pain capability, about options to control it, but
the way to do that is to ask Government agencies to sponsor
workshops, to achieve consensus panels, to hold the kinds of
retreats and conferences that I go to a lot where people are
educated and informed about this.
I don't see it done well by mandating it out of a bill that
is going to be one size fits all, and that is not the world in
which medicine is practiced.
Mr. Nadler. Well, you are describing how science and
medicine normally works. Do you see a useful role for any
legislation in this field, a bill that said that doctors should
discuss this with patients, or is that necessary at all?
Dr. Caplan. I don't think it is necessary at all. I think
what you do is encourage physician education, physician
training through outlets like the National Institutes of
Health.
Mr. Nadler. Let me ask Dr. Anand the same question.
Dr. Anand. I think there is--I agree with Dr. Caplan that
informed consent is a process, that the interaction between the
physician and the patient may occur at one time and may occur
repeatedly until the procedure is performed.
So I think medical professionals should be encouraged to
develop----
Mr. Nadler. But my question is Dr. Caplan described a
process of holding all kinds of colloquiums on training medical
professionals as to what their ethical duties are, in telling
you about whatever the latest findings on pain are, and the
latest findings on the advantages and risks of anesthesia and
so forth. Granted that we should certainly do that. Do you see
that any legislation is necessary or helpful in that, or is
that sufficient?
Mr. Chabot. The gentleman's time has expired, but you can
answer the question.
Dr. Anand. I feel that practitioners who are using this
information should get--should be encouraged to remain up to
date regarding this information. And in that sense, some type
of continuing medical education should be required; should be
required maybe not by law, but by professional standards.
Mr. Nadler. I ask unanimous consent for 1 additional
minute.
Mr. Chabot. Without objection, a half minute.
Mr. Nadler. Thank you.
So do you think a good approach would simply be legislation
mandating that kind of continuing medical education on that
subject?
Dr. Anand. I don't think legislation would be the answer. I
think there are many other avenues that can be followed in
order to encourage research in this area and to demonstrate
knowledge in this area.
Mr. Nadler. Thank you very much.
Mr. Chabot. Gentleman's time has expired.
The gentleman from Arizona Mr. Franks is recognized for 5
minutes.
Mr. Franks. Well, thank you, Mr. Chairman.
Mr. Chairman, I have to suggest that I have I am a little
troubled by just a lot of the discussion here. Dr. Wright has
answered a lot of the questions that I wanted to ask, and I
think the thing that has troubled me here is that we have
engaged in this pseudo-intellectual debate about whether a
child at 20 weeks feels pain. And yet Dr. Wright has testified
that a preemie at 20 weeks, when their heel is stuck or some
noxious stimuli that even a 10-year-old could suggest would
cause the child to feel pain, that the child pulls away. I have
seen children in neonatal units cry when their blood is taken.
And I guess I am really concerned about where our humanity
is going here, Mr. Chairman, because there is so many anecdotal
things that I could point to that really just concern me, but,
you know, if a lot of us saw a little baby bird with a broken
wing flopping around, we wouldn't engage in this intellectual
debate of whether it is hurting or not. There would be
something in our humanity that would call upon us to respond.
And to me that is the greatest challenge we face here.
I know that for a lot of people on this side of the pro-
abortion perspective that this whole discussion of pain for the
unborn child is a delicate, uncomfortable one because it flies
in the face of the position that they hold. And I understand
the discomfort with that. But if all we really cared about was
just being comfortable about the situation, we wouldn't be
having this debate at all.
I am reminded of a situation that occurred when Dr. Abu
Hyatt, Manhattan abortionist, performed a late-term abortion,
and in the midst of it he had to suspend it and sent the mother
home when she was still in a quasi-stupor, and the baby was
born. But the baby was born without the child's arm. And at
some point, the child must have asked that mother--the child
lived and grew up, and the mother had to face a question from
the child at some point, where is my arm?
And I think sometimes we overlook the fact that when we
help mothers understand the reality here, we save them great
pain in the long run many times, because I think that there are
a lot of things that time tempers, that we know that we maybe
had done something that we didn't want to. But to see a mother
learn that her child felt pain in this circumstance has got to
be an inconsolable situation, and my greatest fear--we have had
people say, well, Congress shouldn't be involved here, they
shouldn't be playing doctor, shouldn't be playing medicine.
There was a time when medicine wouldn't have been involved in
this discussion and a time when Congress wouldn't have to be
involved in this kind of situation.
Sometimes the obvious things we can see with our own eyes.
Sometimes the clarity that a 10-year-old possesses escapes
those of us that are erudite in the great policymakers of this
country.
There is nothing that frightens me more for our humanity
than somehow many could go to the end of it and looking back
and realizing that our contribution to it was being willing to
stand by and watch it desecrated before our very eyes.
So, Mr. Chairman, I really have a hard time adding much
more to that, other than to suggest that we need to back up
here a little bit before the last vestige of our humanity is
distinguished and just look at where we really are, because if
there is anything that is true about this life, it is that we
are all mortal. And at some point, we have to ask ourselves
what we have done for those around us.
I thank the panel, and I thank the Chairman for indulging
me and just kind of, just a concern that I have about where
this debate really is.
Thank you, Mr. Chairman.
Mr. Chabot. Thank you very much.
The gentleman from Virginia is recognized for 5 minutes.
Mr. Scott. Thank you.
We have heard from two witnesses; Dr. Anand and Dr. Caplan
have raised questions whether a script is the most effective
way to communicate, or whether a--just a description taken into
consideration, everything, all of the factors involved.
Professor Collett, from your clinical, medical background,
can you explain, can you tell us whether you think the script
developed by Congress is more effective than an explanation
from a medical background, getting guidance from the medical
organizations?
Ms. Collett. I would challenge the characterization of Dr.
Caplan of the bill. To begin with, if you look at section
II(a)2, it's quite clear that after----
Mr. Nadler. Where are you?
Ms. Collett. I am sorry, I have an e-mail printed out,
Congressman Nadler.
Mr. Scott. Page 11, line 24.
Ms. Collett. Thank you, Congressman Scott. It's quite clear
that after a presentation of the statement, it is required that
the physician, if that is the person who is providing this
statement, it can also be an agent of the physician, which, in
fact, it appears from the practice of most clinics as recorded
by Guttmacher Institute and in the various surveys they do,
after making this statement required under clause 1, the
abortion provider may provide the woman involved with his or
her best medical judgment on the risks of administering such
anesthesia or analgesic if any and the costs associated
therewith. Because we have at least four States in the Union
that do not require abortions to be done by physicians. I think
the script in fact is a very important fitting. For example----
Mr. Scott. Just from your clinical background, you think
the script is an effective way to communicate with the patient?
Ms. Collett. I believe in this particular subspecialty, Mr.
Scott, because we have non-physicians engaging in the practice
of abortion, a script is an important protection.
Mr. Scott. Dr. Wright, do you think a script is an
effective way to communicate with patients?
Dr. Wright. Well, I think it is certainly a tool,
especially when we are in an area where information has not
been given. We the people look to the Government to protect us
and to stand up on our behalf. If women have not been given
this information or have not been given it in a way that they
can understand, a script at least makes sure that the same
information is given to every patient.
Mr. Scott. Well, let me ask another question. Based on
medical consensus, should anesthesia be administered or not,
and at what gestational age?
Dr. Wright. Based on----
Mr. Scott. Based on medical consensus. I mean, we are up
here as politicians. We are not just receiving evidence. Is
there medical consensus as to whether anesthesia should be
administered or not?
Dr. Wright. All right. Let's start with the baby at 23
weeks, it pops out today and is on the outside. From then on in
development, there is consensus. We provide anesthesia, period.
No debate, no if, ands or buts.
Mr. Scott. Okay.
Dr. Wright. For the baby younger than that, if it is on the
inside, if it is fetal surgery, there are two anesthetics
planned, one for the mom and one for the baby, because if you
don't protect that baby from that stress and that pain, that
baby will not survive, not only that procedure, but thrive
inside.
Mr. Scott. Well, is there a clear consensus?
Dr. Wright. Sure.
Mr. Scott. Does everybody agree with that? There's a clear
consensus that, at 23 weeks, fetal anesthesia ought to be
administered?
No, there is not. Dr. Caplan.
Mr. Caplan. After reading the literature, no.
Mr. Scott. There is not a consensus, no.
Is there a consensus, Dr. Anand?
Dr. Anand. There is a consensus. All the fetal surgical
procedures that are done today at 20 weeks or later require
anesthetic.
Mr. Scott. We are talking about abortions.
Dr. Anand. Forgive me. I thought Dr. Wright had mentioned,
given two examples, one for fetal surgery and the one for
preterm neonatal surgery.
Dr. Wright. Mr. Scott, there's not a consensus about giving
anesthesia for abortion. That is why we are here, because no
one wants to recognize that a baby undergoing an abortion feels
pain.
Mr. Scott. So your testimony is that there is no consensus
in the medical community as to what to do? I think Dr. Caplan
has pointed out that, depending on the condition of the patient
and various other risk factors, it may be a good thing to do;
it may not.
Dr. Wright. I would say to you, the medical community swims
in two different ponds on this issue. There are those of us who
practice fetal anesthesia, neonatal anesthesia. And there are
abortionists. There is very little, if any, overlap. So to
expect consensus out of those two camps is an irrational
statement.
Mr. Chabot. The gentleman's time has expired.
I would just note, there is not much consensus relative to
whether or not we ought to allow abortion in the country or not
either, so----
Mr. Scott. I think, Mr. Chairman, with all due respect,
here we have a bill that will prescribe a message to a patient.
Presumably the message is going to suggest some action, and
there's no consensus as to what the patient ought to do with
the information? Should they have fetal anesthesia or not?
Mr. Chabot. I think the argument is that they should be
provided the information. They can then do with that
information what they deem appropriate.
Mr. Scott. Well, it's----
Dr. Wright. May I add one more comment. Congress did make
some decisions about informed consent. The lawyer can answer it
better than me, but it's around health care privacy and
protection. Congress came up with that language. We the doctors
didn't.
You prescribed it for us, and we give it to every patient
the same way. So this is not the only time that informed
consent has ever been prescribed by Congress.
Ms. Collett. What we were talking about prior to the
hearing is the Patient Self-Determination Act, which is key to
the Federal Medicare and Medicaid funds, which is not
individual physicians.
Mr. Nadler. But that, if I may, that refers to legal rights
not to medical status;correct? In other words----
Ms. Collett. I understand.
Mr. Nadler. --the script that Congress provides, correct me
if I am wrong there, says, this is your legal right; this is
what the law says.Is that correct?
Ms. Collett. Actually, at the time it was passed,
Congressman, there were several States that didn't have the
documents that Congress wanted them to have.
Mr. Nadler. But as far as the legal system, not with the
medical status; is that correct?
Mr. Scott. Well, if the gentleman would yield--or medical
procedure.
Ms. Collett. It is about withdrawing or continuing life-
sustaining care. So that distinction, I would argue,
Congressman Scott, having been a lawyer that was in practice at
the time it came down and advising a hospital, having to draft
some documents for those hospitals, I think it affected the
medical practice of my clients at that point in time. There
were, in fact, scripts that we had to comply with. But I think
more the concern was how we responded to it.
Mr. Scott. Mr. Chairman, could I ask unanimous consent for
an additional minute?
Mr. Chabot. Without objection.
Mr. Nadler. Would the gentleman yield for Dr. Caplan to
answer the question. He is obviously chomping at the bit.
Mr. Scott. Yes. Let me ask a question, then he can give the
answer as part of the answer. The script includes statements
like, the Congress of the United States has determined that, at
this stage of development, an unborn child has physical
structures necessary and whatnot. Is there any value to what
Congress thinks about the issue? Wouldn't the patient be more
interested in what the American Medical Association thinks
about the issue?
Mr. Caplan. Well, I would answer that and say the
following: I was getting agitated because I actually was in
front of Senator Danforth for the Patient Self-Determination
Act when it was legislated, as a witness, thereby dating myself
as being more ancient than anybody ever should be. But at the
time, there were recommendations about what people needed to
know to control their care in terms of the legal rights.
But that is not the same as giving a script about what must
be told to a person in terms of informed consent in their
clinical care. So to tie back to your question, what I do
believe--and I do respect Mr. Franks and Mr. Chabot's points
about what people need to know in talking about respect for
life--is if you want to educate physicians or nonphysicians to
really do an educational job, to do what informed consent
requires, telling them to read a script is not the vehicle.
They won't understand it, some of them, the people reading it,
so to speak. They are not up on all the literature. They won't
even have all the evidence we have had in the room today. You
have got to have this done as education. You have got to have
it done as part of training. You have to put it in the
residency programs. You want the professional societies to
adopt it, and you want the Federal Government to encourage the
proliferation of this information as it does in many areas,
whether it is--I won't go into them--but it often encourages
whether it is protection against getting the flu or whatever
that these messages go out into the health professions so that
people can talk to their providers.
Last point, not every case is the same. The script is not
reflective of that fact. You couldn't write it that way. When
you have a baby born without a brain and it is an anencephalic
baby, whether you are going to say it can feel pain or not and
someone is getting an abortion for that reason is not the same
as someone coming in for a different reason. What I worry about
with the script is not that you can't answer questions
afterwards; is that the script as it is written now and
Congress is going to produce it is not going to be effective
and not the way that we want information to come out between
doctor and patient or health care provider and patient.
Mr. Chabot. The gentleman's time has expired.
Did any of the other witnesses want to address or answer
the question? If not, okay.
I want to thank the panel for their testimony this
afternoon. This is obviously a controversial issue. Anything
that touches on abortion always is. But you have helped shed
light on this, and it's, I think, been very helpful.
If there's no further business to come before the
Committee, we are adjourned. Thank you.
A P P E N D I X
----------
Material Submitted for the Hearing Record
Appendix to the Prepared Statement of Teresa S. Collett, Professor of
Law, University of St. Thomas School of Law: Fetal Pain Legislation: Is
it Viable? Pepperdine Law Review. Vol. 30:161, 2003
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Appendix to the Prepared Statement of Teresa S. Collett, Professor of
Law, University of St. Thomas School of Law: The Science, Law, and
Politics of Fetal Pain Legislation. Harvard Law Review. Vol. 115:2010
2002
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Prepared Statement of the American College of Obstetricians
and Gynecologists
The American College of Obstetricians and Gynecologists (ACOG)
represents 49,000 physicians and partners in women's health, who care
for and treat women of all ages. As physicians dedicated to improving
women's health care, ACOG opposes legislation that is not based on good
science, legislates how physicians should care for their patients, and
penalizes physicians for legal, medically-sound patient care.
As a result, ACOG strongly opposes HR 356, the ``Unborn Child Pain
Awareness Act of 2005.'' This legislation would require doctors to read
a government-mandated script informing the patient that the fetus might
feel pain, offer or provide the patient anesthesia for the fetus, or
give the patient a government prepared brochure on fetal pain. It would
also impose civil sanctions and medical license revocations on a
physician for failure to read such a script.
FETAL PAIN
ACOG, in consultation with physicians who are experts in fetal
anesthesia and fetal surgery, knows of no legitimate scientific data or
information that supports the statement that a fetus experiences pain
at 20 weeks gestation. We do not know when, or if, fetuses begin
feeling pain since the physical structures needed to feel pain form and
are put into use gradually as fetuses develop.
We know that the cerebellum attains its final configuration in the
seventh month and that myelinization (or covering) of the spinal cord
and the brain begins between the 20th and 40th weeks of pregnancy.
These, as well as other neurological developments, including
neurotransmitted hormones, would have to be in place for the fetus to
perceive pain. Our knowledge is limited to animal studies that show
that these hormones are developed only in the last third of gestation.
Balancing maternal and fetal risks may be different based on
individual circumstances or indications for the procedure, but maternal
safety must be considered when administering anesthesia to a pregnant
woman. The higher dose or amount of anesthesia given to women who are
undergoing fetal surgery puts the mother at greater risk. Furthermore,
at this time, there is no way to measure the dosage of anesthetic
agents delivered to the fetus and no way to measure the effects of
these agents on the fetus.
GOVERNMENT INTERFERENCE WITH INFORMED CONSENT
HR 356 interferes with the doctrine of informed consent and
deprives patients of their physicians' best judgments. Under threat of
civil penalties or license revocation, this legislation would compel
physicians to give women information about fetal pain that is contrary
to medical knowledge.
Requiring a physician to read a government-mandated script that is
not supported by scientific information violates the established
doctrine of medical informed consent. Good medical practice demands
that a patient and physician decide together on treatment based on the
specific needs of each patient. Physicians have a legal, professional,
and ethical obligation to share with their patients all relevant
information about available health care options and to respect their
patients' decisions. State laws, as well as established medical
standards, ensure that women are provided with accurate and unbiased
information about their health care options and give their informed
consent for any procedure, including abortion.
ACOG believes the government should not put obstacles, including
inaccurate medical information, between a woman and her legal health
care options.
CIVIL PENALTIES AND LOSS OF LICENSE
ACOG strongly opposes civil and loss of license penalties, against
doctors who provide legal care based on the needs of their patients.
Obstetrician-gynecologists cannot offer adequate or complete care when
they fear they will be penalized for making decisions in the best
interest of their patients.
SUMMARY
ACOG strongly opposes HR 356, the ``Unborn Child Pain Awareness Act
of 2005.'' HR 356 requires medically inaccurate informed consent
mandates, is not based on legitimate scientific information, imposes
penalties for doctors providing patient care, and does not adequately
consider maternal safety when requiring the administration of
anesthesia to women. This legislation disregards the central tenets of
medical ethics, which could lead to serious health repercussions for
our patients.
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