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A new front in abortion battle

Questions raised on pain of fetus

WASHINGTON -- The next step in abortion opponents' efforts to scale back abortion rights was taken in Congress last week with the introduction of the Unborn Child Pain Awareness Act.

Like the last battle -- the 108th Congress's ban on the procedure some call partial-birth abortion -- the legislation is designed to reduce the number of abortions in the United States, even as Roe v. Wade remains law.

The legislation would not ban any procedures. Instead, it would require doctors to tell women considering abortions who are 20 weeks pregnant or more that "there is substantial evidence" that the fetus will feel pain. The doctor would then have to offer the woman anesthesia for the fetus as part of the abortion.

The legislation says the doctor can tell the woman about the likelihood of the fetus feeling pain or about anesthesia risks. The woman would have to sign a form saying whether she accepted the anesthesia.

"This is the number one issue with the prolife community," said Senator Sam Brownback, Republican of Kansas, the sponsor of the legislation. "It's my hope that . . .once a woman would know her child is going to experience extraordinary pain in this dismemberment that she would say, 'I don't want do this to this child.' "

Opponents say the law would intrude on the doctor-patient relationship and question its very premise: that a fetus at 20 weeks feels pain.

"Women need healthcare at the doctor's office, not politics or a government-mandated lecture," said Traci Gleason, director of public affairs for Planned Parenthood of Kansas and Mid-Missouri.

Before any legislation passes, there has to be scientific consensus on whether a fetus at that stage feels pain, the bill's opponents said.

At a trial last year on the constitutionality of the ban on the late-term abortion procedure, the judge allowed expert testimony that the fetus does feel pain. Bill proponents say that at 20 weeks, a fetus's brain has developed enough to do so.

Brownback also noted the "common experience by virtually every mother that's carried a child: That child feels when you push against it."

But responding to stimuli is not the same as feeling pain, many scientists say.

"Pain does not, so to speak, spring forth from the depths of the person's mind prior to any experience, but is gradually formed as a consequence of general conscious development," Stuart Derbyshire, an anesthesiology professor at the University of Pittsburgh Medical Center, wrote in the American Pain Society Bulletin in 2003.

Furthermore, giving more anesthesia to a pregnant woman could endanger her health, Derbyshire wrote.

"We need to keep concerns about a woman's health paramount, while we make sure she knows all the accurate medical information that's available," said Vicki Saporta, president of the National Abortion Federation.

Brownback's bill went nowhere last year. He said he thinks it has a good chance of passing this year because of the power Christian conservatives wielded in the GOP's 2004 election success, and because many Democrats are rethinking their hard-line opposition to any abortion restrictions, also a result of the 2004 elections.

"What you have to do is . . . work on issues that you think are good for the public where you can build a consensus that's broader than just one side or the other," said Senator Jim Talent Republican of Missouri, a cosponsor of the bill who spoke when it was reintroduced.

The ban on partial-birth abortion garnered 16 Democratic votes in the Senate.

Supporters of the bill could also benefit from a rare split on the bill among the abortion-rights community. While Planned Parenthood is critical of the bill, another leading abortion-rights advocacy group, NARAL Pro-Choice America, will not oppose the legislation.

"Pro-choice Americans have always believed that women deserve access to all the information relevant to their reproductive health decisions," said Nancy Keenan, the group's president, in a prepared statement.

Even if the legislation becomes law, it would have a minimal effect on the numbers of US abortions. According to the Alan Guttmacher Institute, considered a nonpartisan source of abortion statistics, about 90 percent of the approximately 1.3 million annual abortions in the United States are done within the first 12 weeks of pregnancy.

Only 1.5 percent of abortions take place at 20 weeks of pregnancy or later, the point at which the doctor would have to tell a woman that the fetus might feel pain.

"If they're serious about reducing the number of abortions, they should focus on prevention rather than such tactics," Gleason said, citing access to birth control, sex education, and emergency contraception.

More likely, Gleason said, the bill is an effort to further establish fetal rights, an idea that has gained some legal traction in recent years.

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