Can We Still Say That a Fetus Does Not Suffer?

Only Human

By Kathleen Peratis

Published May 04, 2007, issue of May 04, 2007.

The Supreme Court’s recent decision on partial-birth abortion is sickening. Its four-paragraph description of an abortion doctor at work, only snippets of which have been quoted in the mainstream press, sounds like something out of Jeffrey Dahmer’s basement.

Such as: “The doctor grips the fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled out through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed.”

That is how the Supreme Court described a procedure that was not challenged and remains legal. This is how it described the procedure that is now banned:

“The doctor extracts the fetus in a way conducive to pulling out its entire body, instead of ripping it apart.” Once the fetus’s body is past the cervix, the doctor “forces scissors into the base of [its] skull… spreads the scissors to enlarge the opening,” then “evacuates the skull contents.”

The court quotes an operating-room nurse who was present for one of these procedures: The “baby’s little fingers [were] clasping and unclasping and his little feet kicking” until the doctor thrust the scissors into its skull, the “baby flinched” and then “went completely limp…. He threw the baby in a pan along with the placenta and the instruments he had just used.”

You don’t have to be a rocket scientist to understand who benefits from these horrifying descriptions. Remember the right-to-life loonies who used to stand on busy street corners and thrust under our noses pictures of “unborn babies” in bottles? Those who share their anti-choice views now occupy five of the nine seats on the highest court in the land.

We in the pro-choice movement have always been careful to refer to the unborn as “fetuses.” I have a friend who did so throughout her own recent pregnancy; it was not “the baby” until the moment he was born.

Nice try, but that strategy has now been crushed along with some fetal skulls. We, the good guys, will still try to keep the conversation focused on the autonomy and health of women — Ruth Bader Ginsburg’s scalding dissent, delivered orally from the bench, was a battle cry — but for now at least, if we merely ignore those bottled fetuses we will write ourselves out of the conversation.

In hindsight, it is clear that the right-to-lifers’ focus on the fetus has been brilliant. Rights movements are all about creating and exploiting empathy. Scholars tell us that it is people’s increasing capacity for empathy — identifying with the feelings or thoughts of another — that spurred the rights movements of the 18th and 19th centuries.

In the 20th and 21st centuries, the same strategy has served the animal-rights movement well. In the movement’s bible, “Animal Liberation,” Peter Singer describes, among other unpleasantries, the de-beaking of poultry: “Between the horn and the bone is a thin layer of highly sensitive tissue, resembling the ‘quick’ of the human nail. The hot knife used to debeak cuts through this complex of horn, bone and sensitive tissue, causing severe pain.”

Singer’s description was enough to make me pass up the turkey one Thanksgiving a few years ago; I find myself eating fewer and fewer hamburgers. As Jeremy Bentham asks in his classic “Introduction to the Principles of Moral Legislation”: “The question is not ‘Can they reason?’ nor ‘Can they talk?’ but ‘Can they suffer?’”

The Supreme Court didn’t say that the fetus feels pain when its leg is ripped off — it didn’t have to. In his New York Times column a few days after the Supreme Court’s decision, David Brooks tells us so much about the “personality” of the “creature” inside the womb that you can practically see it sitting at a lunch counter, having a Coke. But Brooks is careful not to explicitly ascribe to the fetus the capacity to feel pain; he must know that there is not the science to do so.

“We only know for sure that the fetus reacts reflexively to stimuli,” said prominent New York obstetrician-gynecologist Gideon Panter, who has been performing abortions for decades. “We have no scientific evidence or information as to whether or not the fetus actually feels pain.”

Most anti-choice advocates are either careless or misinformed on the subject. President Ronald Reagan frequently spoke of the “excruciating pain” felt by the fetus in the course of an abortion, and was called to account just as frequently — to no effect. And there was the utterly gruesome right-to-life film of the 1980s, “The Silent Scream,” portraying the agonies of the aborted fetus.

We ignored it then, and we argued — and we were right — that the images were sexed up and the science was junk. Now, not so much.

Now, we see authentic sonograms of those unborn “creatures” within, and they do look like babies. When the Supreme Court describes their legs or heads being ripped off, it is disturbing to even the staunchest pro-choice advocate. The absence of information on capacity to feel pain is not much comfort.

I personally will vote only for candidates who are thoroughly pro-choice, for it is they who will promote the health and equality of women. But I wish that the choice movement would find a way to address the empathy front. It is no longer possible just to avert our eyes.

Kathleen Peratis, a partner at the New York law firm Outten & Golden, was director of the Women’s Rights Project of the American Civil Liberties Union from 1974 to 1978.



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