Utah just became the first state in the country to require anesthesia for patients having abortions at 20 weeks or later, turning what used to be a choice made between doctor and patient into a mandate from the state. The law may also apply to other medical procedures—like early delivery or inducing labor after a woman passes her due date—that are typically performed without anesthesia.
“You never give those medicines if you don’t have to,” David Turko, an associate professor in the University of Utah's Department of Obstetrics and Gynecology, told The Associated Press.
It's an obscure bit of policy with major ramifications for patients, doctors, and access to legal abortion in the United States. It's also part of a larger trend. Because in order to understand what happened in Utah, you first have to understand how abortion rights opponents—in states across the country as well as in Congress—have been using discredited science to undermine the doctor-patient relationship and wage a war on abortion rights.
And so far, the discredited science seems to be winning.
Mandating anesthesia wasn’t even what the bill's sponsor—state Rep. Curt Bramble, a Republican from Provo—originally had in mind. Bramble actually wanted to ban abortion at 20 weeks outright, but, as the AP first noted, he changed tactics after being advised that similar laws had been struck down in other states.
That's when he pivoted to fetal pain, an attempt to use the language of medicine where anti-abortion ideology might otherwise fail. "The judiciary has declared a woman has a right to an abortion," Bramble told the Salt Lake City Tribune back in February. "That doesn't mean she has a right to inflict pain on that unborn child." (Bramble, for what it's worth, is an accountant by trade.)
Many women who have abortions choose, in consultation with their doctors, some form of anesthesia. But the Utah law isn't about the person having the abortion—it's about the fetus.
And as I have written before, the medical consensus on fetal pain is straightforward enough: the neural structures necessary for a fetus to feel pain—or anything at all—are not present until later in gestation. And the most rigorous review of available evidence, conducted by the Journal of the American Medical Association, concluded that "fetal perception of pain is unlikely before the third trimester.” Studies from Harvard University, the British Royal College of Obstetricians and Gynecologists, and University College London have reached identical conclusions.
The American Congress of Obstetricians and Gynecologists, citing the medical consensus, has even called on lawmakers to stop using ideology to replace sound medicine on the issue.
But that hasn't slowed anti-abortion lawmakers in their effort to restrict access based on phony science. In recent years, several states have used fetal pain to justify legislation banning abortion pre-viability in direct contradiction of Roe v. Wade. Montana toyed with the idea of mandatory anesthesia for fetuses before Utah got around to passing the law, and 12 of the 20 states that ban abortion at 20 weeks do so based on claims about fetal pain perception.
And patients have noticed.
“Patients are now asking me about fetal pain. This was not happening 15 years ago,” Dr. Anne Davis, an abortion provider and the consulting medical director for Physicians for Reproductive, told me when I interviewed her about the science of fetal pain back in 2013. “When you’re sitting in your office with a woman who is 22 weeks into a pregnancy with a severe fetal anomaly—she’s depressed, she’s stressed and now she’s worried, Is my baby going to feel pain? It’s just another thing these women have to struggle with. And why? These are created concerns. They are not based in science, they are based in politics.”
And while lawmakers like Republican state Rep. Curt Bramble ignore medical consensus on fetal pain, they are also ignoring doctors in their state who have counseled against the law.
Three doctors of maternal-fetal medicine from Intermountain Healthcare and the University of Utah testified before members of the Utah legislature that general anesthesia can pose health risks in pregnant women. “You’re now mandating [patients] take that risk, based on inconclusive and biased evidence," Dr. Sean Esplin testified, according to a report from the Salt Lake City Weekly. "You don’t understand what you’re legislating."
But lawmakers do understand at least one aspect of what they're legislating: the fact that cumbersome regulations will likely discourage patients from seeking care.
If patients are concerned about the risks of undergoing unnecessary anesthesia, Bramble told CNN, then they "might not want to decide to have that abortion in Utah."
That seems to be a feature, not a bug.