Next month, a doctor performing an abortion in Utah will be required to administer anesthesia after 20 weeks of pregnancy. Passed by the legislature in the recent session, the new law is the first of its kind in the nation. It’s based on the disputed notion that a fetus may feel pain during the procedure.
The author of the law is Utah State Senator Curt Bramble. What he really wanted to do was ban abortion after 20 weeks.
“I believe that the life of an unborn child is worthy of protection by the state,” Bramble says, but he could see that other states that had attempted to outlaw late abortions were facing legal challenges. ”We cannot overturn Roe v. Wade. That’s the law of the land, but there’s nothing that says we can’t protect that unborn child. If we’re going to forfeit their life, then we ought to have the humanity, we ought to have the decency to protect that child from pain.”
Utah law will soon require doctors to administer anesthesia to the mother when conducting an abortion after 20 weeks. It also requires the doctor to inform the mother that substantial medical evidence concludes that a fetus who is at least 20 weeks gestational age may be capable of experiencing pain.
“From a scientific stand point, we do not believe this is true, and by we I mean myself and 23 of my partners, and this is what we do all day every day,” says Dr. Cara Heuser, a maternal fetal medicine specialist at Intermountain Medical Center. In fact, a widely respected study published in the Journal of the American Medical Association concluded that fetal perception of pain is unlikely before the 27th week.
“By having to have this discussion with patients we are being forced to tell our patients something that is not accurate… and that is a grave breach of the doctor-patient relationship,” Heuser says.
In practice, the cases where this would come into play are rare. Among more than 2,700 abortions that occurred in Utah over a year, only 17 were at this late stage. The law does not apply in cases where the mother’s life is in danger or the baby has a fatal diagnosis. It’s targeted towards elective terminations, but according to Utah abortion providers, doctors already use general anesthesia for those procedures. The handful that are left fall into a kind of gray area that lawmakers may not have anticipated - wanted babies with serious medical problems.
Dr. Alexandra Eller is a maternal fetal medicine specialist. She’s standing just outside an ultrasound room at Intermountain Medical Center.
“It’s these rooms where these conversation happen.” Dr. Eller says. She’s the one who has to tell an expecting mother that her baby has a diagnosis of spina bifida or a heart that’s abnormally formed. “You walk up to the door, you turn the handle and you know you are going to change someone’s life forever.”
For Dr. Eller, this new law would come into play when the fetus has a debilitating condition and a slim chance of survival. “To have legislators who have never had that experience, tell us how to counsel women and to give them bad information, is troubling to me.”
Some women might decide to continue the pregnancy. Some may choose to have a dilation and evacuation which is usually conducted under general anesthesia. Some choose to have their labor induced so that they can meet the baby and say good-bye. In this case, Dr. Cara Heuser says the mothers often bring family to the birth and take photos.
“This is a photograph of one of my patients, and her husband and their baby,” Dr. Heuser says. She’s holding a classic family photo, the mother and father looking down at this newborn little girl dressed in a white gown. “I think you can see from this picture how important this option is for families,” she says. “This is something that is very sacred, and is something our patients need to have access to.”
But Dr. Heuser can’t put a laboring mother under anesthesia, so she’s at a loss for how to proceed in these situations, how to do what she thinks is best for patients and still comply with the law.
Senator Bramble, who works as an accountant, insists that he listened to the medical professionals when he crafted his bill. And Bramble points out that in the Utah legislature, there are five doctors who all voted in favor of the bill, like Republican Senator Brian Shiozawa, an emergency physician.
But in the waiting room of St. Mark’s Hospital, Dr. Shiozawa admits he still has issues with the law. When it comes to the bill’s requirement to inform a women that there is evidence the fetus may feel pain, he’s uncomfortable.
“I haven’t seen the literature 100 percent one way or the other that would implicate that, so I couldn’t say that,” Shiozawa says, but he says it wasn’t politically possible to stop the bill. “Realistically, we had to make a pragmatic choice, this bill was going to pass one way or another.” He fought for amendments to help protect patients and doctors - particularly when the life of the mother or fetus was in peril. That, he says was the best he could do.