SALT LAKE CITY — On Tuesday, Utah will become the first state in the nation to require doctors to administer pain medicine to a fetus, through the mother, when performing abortions 20 weeks or more into a pregnancy.
The law puts legislators in the unusual position of being at odds with many maternal-fetal medicine specialists in the state.
“They’ve asked us to do something in a sense that we can’t do,” said Dr. Alexandra Eller, a maternal-fetal medicine specialist at Intermountain Medical Center and the University of Utah.
The law hinges on the disputed notion that fetuses can feel pain at 20 weeks gestational age. The issue is both a scientific and a philosophical one — raising questions about autonomy, suffering and medical ethics.
Supporters of the measure say the law is humane public policy that looks out for the best interests of the unborn child. But some doctors and abortion rights activists say the law is based on unsound science and inappropriately inserts the government into private medical decisions.
Under the law, physicians are required to tell patients that “substantial medical evidence” concludes that a fetus of 20 weeks gestational age may be capable of experiencing pain during an abortion.
The law also requires doctors to give anesthesia or analgesia to the fetus through the mother for abortions 20 weeks or more into a pregnancy. The law makes exceptions for women at risk of irreversible injury or death and for fetuses with “uniformly diagnosable and uniformly lethal” defects.
Eller is one of 22 maternal-fetal medicine specialists and fellows from Intermountain Healthcare and the University of Utah who sent legislators a letter opposing the bill during the 2016 session.
In the letter, the physicians argue that the law forces them to give inaccurate counseling and coerces patients into medical care that may be both risky and unnecessary.
After accounting for a handful of colleagues who did not sign the letter but signaled their support, Eller said she believes the law is opposed by every maternal-fetal medicine specialist at the two health systems.
Sen. Curt Bramble, R-Provo, the sponsor of the bill, said he respects the physicians’ opinions, but "this isn't about the doctors."
"There's this philosophic question about when does the fetus become a sentient being (and) when is that unborn child worthy of the protection of the state?" Bramble said. "This bill says that at 20 weeks, that child is entitled to at least the protection from the infliction of pain that would be caused from the abortion.
“Who is the doctor for the unborn child?" he added.
The measure passed the Legislature easily, with most Democratic lawmakers voting against it. Gov. Gary Herbert signed the bill into law last month.
Bramble said he would have liked the bill to go further. He abandoned his initial plan — a ban on all abortions after 20 weeks gestation — after legislative analysts informed him the measure was unlikely to pass judicial scrutiny.
Fetal pain legislation has become more common in recent years, but research in this area is complex and still unsettled.
Researchers agree that fetuses far younger than 20 weeks will respond to poking and prodding by squirming away or showing elevated stress hormones. But some researchers say these are unconscious reflexes in response to painful stimuli.
To be conscious of pain — to "feel" pain — requires higher-level neural wiring that fetuses do not develop until far past 20 weeks gestation, many say.
The American Congress of Obstetricians and Gynecologists opposes fetal pain legislation based on two research reports — one from the influential Journal of the American Medical Association from 2005 and another from the U.K.'s Royal College of Obstetricians and Gynecologists from 2010.
The first review found that fetuses are not likely to have the neural pathways in the cortex necessary to consciously feel pain before the third trimester, or about 27 weeks. The second review concluded that the threshold is closer to 24 weeks.
But rigorous research on fetal pain research is scant, and there is room for debate, according to Maureen Condic, an associate professor of neurobiology and anatomy at the University of Utah.
Condic, who gave congressional testimony in favor of a bill that would have banned all abortions past 20 weeks, argues that the opinions laid out in the two oft-cited reports are based on popular opinion more than sound science.
Condic said she doubts whether the late-developing cortex is necessary for conscious perception of pain. Animals who do not have higher-functioning cortical structures like fish and birds still appear to suffer, she pointed out.
"If you chopped a wing off of a live chicken and it ran around squawking and flapping its wing frantically and ran away from you, is it suffering?" she asked.
"If we wouldn’t do that, if we wouldn't approve of a little kid who tortures a fish by tearing off its fins, how can we argue that a fetus can’t suffer?" Condic said.
Rep. Keven Stratton, R-Orem, the House sponsor of the Utah bill, cited Condic’s testimony in his defense of the law.
"We all need to recognize that our understanding of medicine and human life is evolving,” Stratton said. “And as that evolves, let's create a safe harbor for a fetus 20 weeks and older."
What both sides do agree on is that the law is unlikely to affect more than a handful of women.
Nationwide, fewer than 1 percent of abortions take place after 20 weeks. State data from 2014, the most recent available, shows that 17 abortions took place in Utah after 20 weeks — 14 of them due to fetal malformations.
The vast majority of these are wanted pregnancies, according to Eller.
Most of the women were over the age of 25; two of them were in their 40s. Eleven were married. Most chose a surgical method of abortion usually done under general anesthesia. But five chose a method called induction, in which they take medication to induce labor.
The women who choose induction often do so because it gives them the option of saying goodbye to the baby, according to Eller. In rare cases, women choose not to be anesthetized because they want to feel the pain as part of the grieving process, Eller said.
"If you sat with these families after the delivery as they hold these precious babies dying in their arms, you realize this is not what they want to do," she said. "This is not about a callous decision to end a pregnancy. To legislate that we anesthetize the fetus so that it never takes a breath — so that a woman never has the chance to say goodbye — is really cruel."
Doctors who believe the law forces them to give unethical treatment face tough decisions. Violating the law is considered a criminal offense, a class A misdemeanor punishable by up to a year in jail.
"It's an impossible spot," said Dr. Leah Torres, an OBGYN and reproductive rights advocate.
Until now, doctors in Utah have been required by state law to give women the option of anesthesia for abortions. But doctors have not — until now — been required to give it if the patient did not want it.
Anesthesia does not come without its risks, particularly for pregnant women, Torres said.
"I cannot violate my oath as a physician. I cannot violate my patient’s trust. And I cannot increase risk that is undue and undesired by my patient," Torres said. "If that gets me arrested, I suppose that’s a risk I’m willing to take for the well-being of the patient."
Eller says she will inform patients that the most current science on fetal pain does not support the claims that the Legislature is making them repeat.
“This is about a woman’s right to bodily integrity. If a patient refuses medication, what are we to do?" Eller said. "I will not administer a medication to my patient against her will."
Legislators did not specify how they expect doctors to administer medication to the fetus.
In the past, doctors have often given women anesthesia for abortions — but for the woman's comfort, not for the fetus, Torres said. She said the procedure doesn't exist in "standard medical practice" for fetuses.
"I don't know what a fetal dose of Ibuprofen is," Torres said. "How do I know that I'm relieving this pain that the fetus is supposed to be feeling?"
In fetal surgery, doctors put women under general anesthesia to sedate the fetus so it doesn't kick around too much. But that can be risky, particularly for pregnant women.
Stratton said the bill was not drafted with a specific procedure in mind.
"We've been told by the medical profession that there's many different options," Stratton said. "I would leave that up to the doctor and the patient."
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