When do fetuses feel pain? Question puts Utah abortion law and doctors at odds

By Molly Hennessy-Fiske

May 10, 2016 3 AM PT

Reporting from Salt Lake City — After seeing patients and making the rounds at a local hospital recently, Dr. Leah Torres stopped at a cafe, brown curls tied back in a surgical cap, still in scrubs, a fleece covering the name stitched over her heart.

Torres, 36, is ever vigilant since she began spending half a Saturday each month working at one of Utah’s two licensed abortion clinics. Now she’s taken on more work – coping with a new law that critics say is emerging as the latest front in the antiabortion fight.

The law, which takes effect Tuesday, requires doctors to provide anesthesia or painkillers to women seeking an abortion 20 weeks or more into a pregnancy. The pain medication is for the fetus. Though such late-term abortions are rare – just 17 in Utah in 2014, according to the local Planned Parenthood chapter – the “fetal anesthesia” law scares doctors like Torres.

“It criminalizes us,” said Torres, who is consulting an attorney about how to comply with the law. Other doctors say the law is based on bad science and could put women at risk.

Dr. Leah Torres said the law would force her to “lie to patients because there’s no medical evidence that a fetus feels pain at 20 weeks.”

Utah is the first state in the country to require treatment of “fetal pain” for abortions. Under the law, doctors are required to provide pain medication to “alleviate organic pain to the unborn child.”

The law also requires doctors to notify women that medical evidence shows a 20-week fetus may feel pain during an abortion. The law exempts cases of rape, incest, where a woman would die or where two doctors agree the fetus has a “uniformly lethal” condition.

A spokesman for Utah’s Health Department said it was up to doctors to decide what anesthetics to use. Doctors who break the law could face thousands of dollars in fines and lose their licenses.

The law, passed by the largely Republican Legislature, was proposed by Republican state Sen. Curt Bramble, a certified public accountant who wanted to ban abortions but determined an outright ban would be overturned by the courts.

“The thought in Utah was if we can’t prohibit abortions at 20 weeks, at least we could protect the child from the pain,” Bramble said, adding that the law does not specify how doctors should comply, only that they should.

Bramble is president of the National Conference of State Legislatures, and said he had been contacted by lawmakers in other states who want to propose similar laws.

State lawmakers have passed measures requiring doctors to inform women seeking abortions that fetuses feel pain, and they have cited fetal pain in passing restrictions on abortions at 20 weeks or more. Last year, Montana’s Republican-dominated Legislature passed a “fetal pain” law, but it was vetoed by Gov. Steve Bullock, a Democrat.

Dr. Leah Torres (Molly Hennessy-Fiske / Los Angeles Times)

“There is scientific evidence that a fetus feels pain,” said Mary Taylor, president of Pro-Life Utah. “As compassionate human beings we need to step back and err on the side of caution.”

Many doctors disagree. In Utah, about two dozen doctors sent letters to state lawmakers opposing the legislation, arguing it was not based on science and could put women’s health at risk.

Opponents of the law cited evidence that a fetus was unlikely to feel pain until about 27 weeks, according to a study published in 2005 and found to be sound three years ago by the American Congress of Obstetricians and Gynecologists.

“A general rule in medicine is we want to limit risks to the patient,” Torres said. She said the law would force her to “lie to patients because there’s no medical evidence that a fetus feels pain at 20 weeks.”

It’s also unclear, she said, how doctors are supposed to comply with the law: “Is it general anesthesia? A long needle through her abdomen, IV?”

When she contacted state officials, Torres said she was told to get a lawyer.

Torres has performed several abortions this year that would have been covered by the law, and said they were already fraught experiences, often planned pregnancies where the 20-week ultrasound reveals serious problems with fetal development.

She has been outspoken against restrictions on abortion access, testifying against the fetal anesthesia law, lobbying congressional leaders and discussing her job with opponents on Twitter. She has not been attacked, but said she had seen fellow abortion doctors censored and threatened.

Last week, a doctor in Washington, D.C., who Torres knows filed a civil rights complaint after hospital officials warned her to stop publicly defending abortion. (She had written a piece in the Washington Post complaining that opponents had used photos of her 15-month-old daughter to threaten her online.)

Also last week, a Wichita, Kan., jury sided with an antiabortion activist, saying she did not intend to intimidate a doctor by sending her a letter warning that her car could be bombed.

The doctor had been training to replace Dr. George Tiller, 67, shot and killed at his church by an antiabortion extremist in 2009.

Torres said that during the debate over the Utah fetal anesthesia law, even her father, who has been supportive, urged her not to speak out, saying she could make herself a target. But Torres said she and other doctors had no plans to stop.

“We are fighting back,” she said. “We will not be bullied into hiding.”

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