Women who decide to seek an abortion rarely make that decision after the first 20 weeks of pregnancy, according to an international research institute on reproductive health. But a legislative proposal in Iowa uses scientifically debatable assertions about fetal pain to target those few women. The proposal also carries a sweeping provision that could have major legal consequences for any woman who chooses to get an abortion, physicians and legal experts say.
That provision, contained in House File 5, would officially define life as beginning at conception, and most of the sponsors of the bill recently made that definition a separate bill. The separate bill, House File 153, never got out of committee last week, and its fate is now uncertain.
Rep. Matt Windschitl, R-Missouri Valley, who proposed HF 5 and is one of 28 co-sponsors of HF 153, said he found evidence for fetal pain by conducting his own research online and by consulting his family physician to learn about the stages of development of an unborn child. He said he also referred to testimony from physicians who have previously testified on the subject. Windschitl did not respond to requests for his family physician’s contact information.
But another physician, an Iowa doctor who specializes in obstetrics and gynecology, disagrees with Windschitl and the comment he attributed to his family doctor.
“I think it’s impossible to say conclusively that there is such a thing as fetal pain,” she told IowaWatch.
At the request of the physician, who offers abortion services to women who are 20 weeks pregnant, IowaWatch granted her anonymity. Several physicians who offer abortion services have been killed by people who oppose abortions in recent years. One of them was Dr. George Tiller of Wichita, Kans., who provided late-term abortions and was killed in 2009.
“It is just a safety issue for you to print that I perform those procedures,” the Iowa obstetrician-gynecologist said.
Her comments about fetal pain are supported by a 2005 study published in the Journal of American Medicine. It found that a fetus’ ability to feel pain is unlikely. The study concluded that a fetus does not have the capacity to feel pain until the 29th or 30th week of a women’s pregnancy. Evidence regarding the capacity for fetal pain is limited but indicates that fetal perception of pain is unlikely before the third trimester.
Rep. Beth Wessel-Kroeschell, D-Ames, also questions the claims regarding a fetus’ capacity to feel pain at 20 weeks. She and Rep. Mary Mascher, D-Iowa City, said they were unfamiliar with any concrete evidence or research that indicates a fetus can feel pain at 20 weeks.
But proponents of the bill say that even if scientists disagree on when fetuses can feel pain, they believe they should err in favor of the fetus. Windschitl pointed to studies and expert testimony that supports the notion that fetuses can feel pain as early as 20 weeks.
“Why Can’t We Love Them Both,” a book Windschitl referred to, argues that fetuses have the capacity to feel pain as early as eight weeks from fertilization. The book was published in 1997 by Jack C. Willke, a doctor, author and president of two anti-abortion organizations, the International Right to Life Federation and the Life Issues Institute.
As for the Iowa bill, Windschitl said it was important for him to propose the legislation in early January because of, “the imminent threat of LeRoy Carhart opening a practice in Council Bluffs.”
Carhart, a Nebraska physician and a former colleague of the late Dr. Tiller, has previously reported that he was one of only 12 doctors in the country who performs abortions after 20 weeks.
Late last year, Carhart announced plans to open sexual and reproductive health clinics which would offer abortion services in Iowa, Maryland and Indiana. He did so after Nebraska passed a 20-week limit law, titled Pain Capable Unborn Child Protection Act, which aimed at keeping Carhart from continuing his practice in the state. Carhart has yet to open a clinic in Iowa.
Kansas recently passed a similar bill through the state House of Representatives that would restrict abortions to 20 weeks based on the fetal pain argument that was used to justify Nebraska’s law.
Iowa law allows women to decide whether or not to have an abortion until the end of her second trimester, or approximately 26 weeks.
Windschitl said he believed this bill would ultimately, “save innocent lives from barbaric late term abortions.” Others, however, disagree.
“Women who choose to have abortions after 20 weeks are deciding to have an abortion not necessarily because it is something they want, but because it is necessary,” said the Iowa obstetrician-gynecologist.
She explained that those women typically are people who have discovered that their fetus had developed a birth defect, or women who find out that carrying on the pregnancy poses a threat to their health, not women who are looking to terminate an unwanted pregnancy.
Twenty-three percent of abortion providers offer abortions after 20 weeks. The Guttmacher Institute, an international non-profit center that does research on reproductive health and reproductive rights, said that in the United States, 22 percent of all pregnancies end in abortion and 1.5 percent of these abortions occur after 20 weeks. The institute is named after the late Alan Guttmacher, a long-time president of the Planned Parenthood Federation of America.
The bill would protect a woman’s right to have an abortion after 20 weeks in cases of medical emergencies, but women who find out their fetus have some sort of abnormality would not have this same protection.
Women who discover that their fetus has a birth defect do so through an amniocentesis test, a prenatal diagnosis of fetal abnormalities, according to Harvard Health Publications. This test is typically administered between the 15th and 20th weeks of pregnancy in order to determine a fetus’ health before birth.
Possible birth defects found during an amniocentesis include Down syndrome, muscular diseases that may worsen over time, lung diseases and even diseases in which the brain and spinal cord do not develop correctly.
Rep. Wessel-Kroeschell said in situations where an amniocentesis test shows birth defects, the women may have approximately two weeks to decide if they want to continue testing or terminate the pregnancy.
“I think we’re rushing her into a decision that she’s not ready to make,” she said.
The bill also says that life begins at conception. Windschitl said that it was important for him to include the clause in the bill because of his own personal feelings and pro-life stance.
Several women’s health advocates, including members from The Center for Reproductive Rights and Planned Parenthood of the Heartland, strongly oppose a possible 20-week limit on abortions and do not want the idea that “life begins at conception” written into law.
Both advocacy groups, Wessel-Kroeschell, Mascher and others have concerns over the possible legal ramifications of the bill.
The 1973 landmark Supreme Court case Roe v. Wade never addressed whether or not life begins at conception. The Supreme Court ruled that a woman had the right to have an abortion up to viability, or the point in her pregnancy in which the fetus could independently survive outside of the womb, as determined by a doctor. Most research suggests that a fetus has over a 50 percent chance for survival outside of the womb beginning at 24 weeks.
“People have different reasons, religious, personal, moral reasoning for deciding when life begins. It should never be up to legislators to decide,” Jordan Goldberg, the state advocacy counsel for the Center for Reproductive Rights, said.
Rebecca Zietlow, an adjunct law professor at the University of Iowa, questioned the constitutionality of the bill, because it attempts to establish a legal definition for a religious issue – when life begins.
“Freedom of religion issues bring up First Amendment concerns,” said Zietlow.
A separate bill, HF153, takes this issue one step further. HF153 declares that life is protected from the moment of conception. The bill was approved by an Iowa House subcommittee on February 14th.
Zietlow said HF5 may be unconstitutional under Planned Parenthood v. Casey. In 1992, the Supreme Court’s decision in Casey determined that, prior to viability, individual states could not place an undue burden on a woman’s right to have an abortion. Because fetuses are not viable at 20 weeks, Zietlow argued that the bill, if passed, would pose the undue burden that the 1992 decision prohibits.
“Sometimes legislators enact laws like this to be challenged so that they can appeal to the Supreme Court and use it as a vehicle to overturn Roe v. Wade,” said Zietlow.
Regardless, Windshitl believes that if the bill was challenged and sent to court, it would hold up constitutionally. He remains passionate about the legislation and continues to advocate for its passage as well as for his pro-life stance.
“If I could, I’d stop the illegal precedent set by Roe v. Wade,” Windschitl said. “It’s a personal feeling of mine.”
(Layla Pena is sophomore at the University of Iowa majoring in journalism and international studies.)