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Abortion Bill Would Consider Fetal Pain

March 28, 2011 | WLRN - Lawmakers in Tallahassee have filed eighteen different bills restricting abortion. That puts Florida among the top five states nationally for proposed abortion legislation. One of the most controversial bills would make fetal pain the new standard for when to cut off abortions.

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South Florida Representative Carlos Trujillo has filed a bill called the “Pain Capable Unborn Child Act.” It would prohibit a doctor from giving a woman an abortion more than 20 weeks into her pregnancy.  Trujillo says that’s the age when a fetus reacts to a harmful touch by jerking away and experiencing raised heart rate and hormone levels.

He says his experience seeing an ultrasound image of his own unborn child prompted him to file the legislation.

“That’s beyond what any medical expert can tell me that that child was not alive, that he was not a human being,” he said.  “I saw it with my own eyes, I saw his heart beat.”

Lillian Tomayo, who runs Planned Parenthood of South Florida, is concerned about a different kind of pain.

“It’s about the pain that a woman undergoes in planning to have a child and then has to struggle with a complicated pregnancy. That’s the pain,” she said.

The clinical definition of human pain has two parts. There’s the physical sensation of pain, and then there’s the emotional and psychological experience of pain.

Several top medical institutions, including the Journal of the American Medical Association, say a fetus at 20 weeks cannot experience human pain because it cannot process pain on the emotional level.

Mark Graber, a Dean at the University of Maryland School of Law, says the legal standard for abortions is viability – when a fetus can live on its own, outside of the uterus. That usually comes at 24 weeks.

“The standard is viability, not capacity to feel pain,” Graber said, “even if there is a capacity to feel pain.”

Despite these scientific and constitutional hurdles, legislators in Florida and sixteen other states have proposed fetal pain bills.

Graber thinks the reason is simple: Politics. 

“Nobody really thinks this is going to pass constitutional muster, but a lot of people think they can get reelected,” he said. “You gain pro-life votes because you say, look at all the wonderful things I’m voting for. And you don’t lose many pro-choice votes because this all gets knocked out in the courts. So this seems to be more posing than policy.”

Representative Trujillo sees fetal pain as an issue that could reshape the abortion debate.

“I’ve received some positive response,” he said, “even from some Democrats.”

He says he’ll reintroduce the bill next year if it doesn’t pass during the current legislative session.

Note:  This story is part of “Session 2011,” a joint project of WLRN Miami Herald News and WUSF in Tampa.  Click here for more stories from the series.


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