Co-authored by Sherry F. Colb
Utah recently became the first state in the union to require that anesthesia be administered to fetuses aborted at or after 20 weeks of pregnancy.
Pro-choice opponents of the Utah law argue that the best medical evidence indicates that fetuses do not feel pain until roughly 27 weeks. Moreover, they say, the administration of untested fetal anesthesia could jeopardize the health of pregnant women seeking abortions.
These are legitimate concerns, but they do not argue against requiring fetal anesthesia. No one can deny that at some point prior to birth, the average fetus experiences pain and other sensations. If the Utah law mandates fetal anesthesia at a point in pregnancy when it would do no good, then the cutoff should be moved to later in pregnancy. If there are not current medical techniques for providing fetal anesthesia without jeopardizing the woman's safety, such techniques should be developed.
Is that all that should be done? Why doesn't the Utah law go further and ban abortions of pain-capable fetuses? Some other states have recently enacted laws doing exactly that, and similar legislation has been introduced in Congress.
The pro-choice community regards Utah's law and the pain-capable abortion bans as a threat to the abortion right. They are that, but they also challenge the conventional pro-life position.
According to the orthodox pro-life view, abortion is immoral and should be illegal from the moment of conception. In this view, a one-celled zygote has as much of a right to life as a 20-year-old college student, because each is a unique individual human being.
Yet the pain-capable abortion bans rest on a very different rationale. They assume that the right to continued existence depends on the fetal capacity to experience pain. Of course, no one would want to live for the purpose of feeling pain. Pain-capable abortion bans are based on the notion that the capacity for pain is an indicator of other capacities as well. These laws treat sentience as the divider between a mere potential someone and an actual someone. Sentience is simply the ability to have experiences of any kind. It is the difference between being a someone and a something.
Zygotes, embryos, and fetuses have human DNA before fetal sentience, but by drawing the line where they do, pain-capable abortion bans invest sentience with moral significance that mere membership in the human species lacks. That distinction challenges conventional pro-choice and pro-life commitments. It also has implications for how human beings treat non-human animals.
After all, humans are not the only sentient beings on the planet. And if sentience, rather than membership in the human species, grounds the right to life of late-term fetuses, then why shouldn't other sentient animals also have a right to life? Cows, chickens, pigs, and fish are all sentient beings capable of experiencing pain, pleasure, and, as ethologists are increasingly discovering, other emotions.
The Utah law does not ban abortions of pain-capable fetuses. In that respect, it might be analogized to laws that limit the slaughter of animals to humane methods. Killing is permitted, so long as it is painless.
In fact, however, laws governing humane animal slaughter are woefully inadequate by design. For example, the federal Humane Slaughter Act does not cover birds, even though billions of chickens are killed for food each year. Meanwhile, uneven enforcement and the unfathomable numbers of animals raised and killed for food mean that suffering is routine even for the kinds of animals that are covered by the Act.
The analogy to humane slaughter does not fit for another reason. The pro-life backers of the new Utah law probably would have proposed banning all abortions if Supreme Court cases finding a constitutional right to abortion did not prevent them from doing so. Similar pragmatic considerations also explain why the Utah legislature stopped short of banning abortions of pain-capable fetuses. Such laws have been struck down when challenged in court.
Utah's law and the pain-capable abortion bans raise important scientific and moral questions about late-term abortions. By shifting the focus from arguments about when human life begins to when sentience occurs, they also should lead us to question our routine exploitation and killing of billions of sentient non-human animals.
Sherry F. Colb and Michael C. Dorf are law professors at Cornell University. They are co-authors of Beating Hearts: Abortion and Animal Rights (Columbia University Press 2016).