[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]


 
                           PAIN OF THE UNBORN

=======================================================================

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                            NOVEMBER 1, 2005

                               __________

                           Serial No. 109-57

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


                                 ______

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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, General Counsel-Chief of Staff
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

                    Subcommittee on the Constitution

                      STEVE CHABOT, Ohio, Chairman

TRENT FRANKS, Arizona                JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee        JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama              ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana          MELVIN L. WATT, North Carolina
MARK GREEN, Wisconsin                CHRIS VAN HOLLEN, Maryland
STEVE KING, Iowa
TOM FEENEY, Florida

                     Paul B. Taylor, Chief Counsel

                      E. Stewart Jeffries, Counsel

                          Hilary Funk, Counsel

                 Kimberly Betz, Full Committee Counsel

           David Lachmann, Minority Professional Staff Member


                            C O N T E N T S

                              ----------                              

                            NOVEMBER 1, 2005

                           OPENING STATEMENT

                                                                   Page
The Honorable Steve Chabot, a Representative in Congress from the 
  State of Ohio, and Chairman, Subcommittee on the Constitution..     1
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Ranking Member, Subcommittee on the 
  Constitution...................................................     2

                               WITNESSES

Dr. Sunny Anand, Director, Pain Neurobiology Laboratory, Arkansas 
  Children's Hospital Research Institute, and Professor of 
  Pediatrics, Anesthesiology, Pharmacology, and Neurobiology, 
  University of Arkansas College of Medicine
  Oral Testimony.................................................     5
  Prepared Statement.............................................     7
Dr. Jean Wright, Professor and Chair of Pediatrics, Mercer School 
  of Medicine
  Oral Testimony.................................................    19
  Prepared Statement.............................................    20
Dr. Arthur Caplan, Director, Center for Bioethics, and Chair, 
  Department of Medical Ethics, University of Pennsylvania
  Oral Testimony.................................................    23
  Prepared Statement.............................................    25
Ms. Teresa S. Collett, Professor of Law, University of St. Thomas 
  School of Law
  Oral Testimony.................................................    27
  Prepared Statement.............................................    30

                                APPENDIX
               Material Submitted for the Hearing Record

Appendix to the Prepared Statement of Teresa S. Collett, 
  Professor of Law, University of St. Thomas School of Law: Fetal 
  Pain Legislation: Is it Viable? Pepperdine Law Review. Vol. 
  30:161, 2003...................................................    48
Appendix to the Prepared Statement of Teresa S. Collett, 
  Professor of Law, University of St. Thomas School of Law: The 
  Science, Law, and Politics of Fetal Pain Legislation. Harvard 
  Law Review. Vol. 115:2010 2002.................................    72
Prepared Statement of the American College of Obstetricians and 
  Gynecologists..................................................    96


                           PAIN OF THE UNBORN

                              ----------                              


                       TUESDAY, NOVEMBER 1, 2005

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 4 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable Steve 
Chabot (Chair of the Subcommittee) presiding.
    Mr. Chabot. The Committee will come to order. If the 
witnesses would like to make their way up to the table as I 
begin my opening statement here.
    This is the Subcommittee on the Constitution. I am Steve 
Chabot, the Chairman. Congressman Nadler is the Ranking Member. 
He will be here very shortly.
    The House Constitution Subcommittee convenes today to 
consider the ability of the unborn to experience pain and the 
constitutionality of informed consent laws requiring abortion 
providers to provide pregnant women with information on pain of 
the unborn.
    As President Ronald Reagan stated, ``Medical science 
doctors confirm that when the lives of the unborn are snuffed 
out, they often feel pain, pain that is long and agonizing.''
    The topic of pain of the unborn, including whether, how 
early and to what extent an unborn child feels pain, ignites 
heated debate, yet 77 percent of the individuals surveyed in an 
April 2004 Zogby International poll favor a law requiring that 
women who are 20 weeks or more along in their pregnancy be 
given information about pain of the unborn before having an 
abortion.
    Addressing this issue is the Unborn Child Pain Awareness 
Act, which was introduced by Representative Chris Smith and 
referred to the Energy and Commerce Committee. H.R. 356 defines 
a pain-capable unborn child as, ``an unborn child who has 
reached a probable stage of development of 20 weeks after 
fertilization.'' The bill requires an abortion provider or his 
agent to provide a pregnant woman with information on pain of 
the unborn and anesthesia prior to aborting an unborn child 
capable of feeling pain.
    H.R.356 would apply to the approximately 15,000 to 20,000 
abortions that are performed each year in the United States on 
unborn children who are 20 weeks or more past fertilization.
    Even individuals in the pro-abortion community recognize 
that women should be provided information on pain of the 
unborn. Nancy Keenan, president of NARAL Pro-Choice America, 
stated that NARAL would not oppose the Unborn Child Pain 
Awareness Act because women deserve access to this relevant 
information.
    A discussion of pain of the unborn must begin with 
establishing what the words ``feels'' and ``pain'' mean. While 
some physicians define ``feels'' to require consciousness, 
others argue that observed physiological and behavioral 
responses to stimuli are reliable indicators of pain.
    Because the unborn are incapable of verbal expression, the 
evidence for pain of the unborn must be based on anatomical, 
functional, physiological and behavioral indicators that are 
correlated with pain.
    The pain of the unborn is not lessened by maternal 
anesthesia. Anesthesia given to a mother has little or no 
effect on her unborn child.
    Our witnesses today will discuss the unborn's anatomical 
development, physiological responses to painful stimuli, and, 
ability to experience pain, perhaps even greater pain than that 
experienced by older infants, children or adults. They will 
explain how the evidence supports the conclusion that the 
unborn experience pain by at least 20 weeks gestation, and 
perhaps even earlier.
    Information on pain of the unborn is relevant to a woman's 
decision of whether to abort her child. Informed consent 
provisions that require physicians to provide women with 
information on pain of the unborn are consistent with the 
Supreme Court's abortion jurisprudence. In Planned Parenthood 
v. Casey, the Supreme Court upheld Pennsylvania's informed 
consent provisions that required an abortion provider to notify 
the pregnant woman of information on gestational age, fetal 
descriptions, the nature and risks of the procedure, child 
support, and abortion alternatives.
    Seven Justices, Supreme Court Justices, voted to uphold 
these provisions. According to the plurality opinion, ``In 
attempting to ensure that a woman apprehends--or comprehends 
the full consequences of her decision, the State furthers the 
legitimate purpose of reducing the risk that a woman may elect 
an abortion only to discover later with devastating 
psychological consequences that her decision was not fully 
informed. If the information the State requires to be made 
available to the woman its truthful and not misleading, the 
requirement may be permissible. We also see no reason why the 
State may not require doctors to inform a woman seeking an 
abortion of the availability of materials relating to the 
consequences to the fetus, even when the those consequences 
have no direct relation to her health.''
    Information on pain of the unborn such as that included in 
the Unborn Child Pain Awareness Act, requires abortion 
providers to notify pregnant women of truthful information that 
is not misleading. The requirement to provide information on 
the pain of the unborn to pregnant women will enable these 
women to better apprehend the full consequences of their 
decisions. Such a requirement is fully consistent with the 
Constitution.
    My time has expired.
    The gentleman from New York is recognized for 5 minutes for 
the purpose of making opening statement.
    Mr. Nadler. Thank you, Mr. Chairman. I want to join you 
welcoming our panel today.
    Mr. Chairman, while we are often at odds on issues relating 
to abortion, I think we all agree that informed consent is part 
of any meaningful definition of choice. That is why I have long 
supported educational programs that provide young people with 
the information they will need in life to make intelligent and 
responsible decisions about their health, about family 
planning, and so that they can become responsible citizens.
    I do have to admit some trepidation, as I have mentioned in 
the past, when Congress starts playing doctor, or, in this 
case, neurologist. I can recall the last time Members of 
Congress attempted to play neurologist, making off-the-cuff 
diagnoses of a patient they had never seen and attempting to 
codify their understanding of that particular patient's 
condition, the entire affair was an embarrassing fiasco for 
this institution. It led some of the leaders of this House and 
the other House denouncing--I am sorry, denying, that they have 
said what they have said, and I hope that this fiasco will 
never be repeated.
    The last time Professor Caplan was here to testify before 
our Committee, the markup of the bankruptcy bill went late, and 
we had to cancel the hearing. Later that evening, without the 
benefit of a hearing, the House passed legislation dealing with 
the Schiavo case. That was three bad calls in the matter of a 
few hours. I would hope that we might have learned something 
from that experience.
    We are not, after all, considering this issue in a vacuum. 
This discussion is not purely an academic exercise with respect 
to when a fetus feels pain. We are not simply reviewing the 
salience to satisfy our curiosity.
    Although it is not within our Committee's jurisdiction, it 
is no secret that our colleague, the gentleman from New Jersey, 
has introduced a bill that would require health care providers 
to read a script, a script written into the legislation 
verbatim, stating as facts certain views on fetal development 
and the question of pain, facts as stated by Congress which may 
or may not necessarily agree with the latest scientific 
determinations, especially as those determinations may change 
from time to time.
    This is an area of active scientific research, and there is 
no clear consensus within the scientific community on a 
particular conclusion. I am deeply concerned at the prospect 
that the Congress settling scientific debates by legislative 
fiat, which reminds me of the Supreme Soviet decision in 
Lyshenko affair--and they made a mistake on that one. Congress 
has already demonstrated that it is not particularly good at 
that. We should be supporting free inquiry, scientific research 
and the open and healthy doctor-patient relationship.
    I have no doubt that all of our witnesses are sincere in 
their views. That does not mean they are all correct in their 
views. I know that Dr. Anand has published his work in peer-
reviewed medical journals, has had researchers who have come to 
very different conclusions. Unfortunately the minority is only 
permitted one witness, so the deck is stacked in a way that is 
not particularly conducive to thoughtful inquiry. We could not 
call here scientists who have reached different conclusions 
than Dr. Anand.
    We have invited Dr. Caplan, because he is one of the 
Nation's most respected medical ethicists, in the hope that he 
would be able to provide the Members of this Committee with 
some guidance on how to approach these issues.
    No one should, however, mistake today's hearing for the 
sort of vigorous inquiry that is the hallmark of proper 
scientific inquiry. Congress is not very good at doing science, 
and the manner in which we conduct our deliberations is one 
part of the reason.
    I want to welcome our witnesses. I look forward to your 
testimony.
    Thank you, Mr. Chairman. I yield back the balance of my 
time.
    Mr. Chabot. Thank you very much.
    I would like to introduce our distinguished panel here this 
afternoon at this time. Our first witness is Dr. K. S. Anand. 
Dr. Anand is currently appointed as a tenured professor of 
pediatrics, anesthesiology, pharmacology, neurobiology and 
developmental sciences in the College of Medicine, University 
of Arkansas, for Medical Sciences, and is the first recipient 
of the Morris and Hettie Oakley Endowed Chair in Critical Care 
Medicine. He has established the pain neurobiology laboratory 
in Arkansas Children's Hospital Research Institute in Little 
Rock, Arkansas.
    Dr. Anand received his research training as a Rhodes 
Scholar at the University of Oxford. He completed fellowship 
training in pediatric critical care medicine at the 
Massachusetts General Hospital and was appointed as a assistant 
professor at Emory University.
    Dr. Anand has published more than 200 peer-reviewed 
articles in addition to numerous review articles, book chapters 
and editorials, and has edited five books and journal issues. 
His research has received widespread recognition, and he has 
received numerous extramural grants to support his research 
activities from the NIH, National Endowment for Health, 
Blowitz-Ridgeway Foundation and other sources. And we very much 
appreciate you being here, Doctor.
    Our second witness is Dr. Jean Wright. Dr. Wright is the 
Executive Director and Vice President of Operations for 
Children's Hospital and Women's Institute at Memorial Health 
University Medical Center in Savannah, Georgia. She is also 
Professor and Chair of Pediatrics for Mercer School of 
Medicine. Dr. Wright is trained in pediatrics and anesthesia, 
board-certified in both, and certified in the subspecialties of 
pediatric critical care and anesthesia critical care.
    Dr. Wright has been in academic medicine over 20 years, and 
prior to going to Savannah served at Emory University and 
Children's Health Care of Atlanta. Dr. Wright currently chairs 
the Federal Advisory Committee on Fetal Alcohol Syndrome for 
the CDC. And we welcome you very much as well, Dr. Wright.
    Our third witness is Dr. Arthur Caplan. Dr. Caplan is 
currently the Emanuel and Robert Hart Professor of Bioethics, 
Chair of the Department of Medical Ethics and the Director of 
the Center For Bioethics at the University of Pennsylvania in 
Philadelphia. Prior to going to Penn in 1994, Dr. Caplan taught 
at the University of Minnesota, University of Pittsburgh, and 
Columbia University. He was the associate director of the 
Hastings Center from 1984 to 1987.
    Dr. Caplan is the author or editor of over 25 books and 
over 500 pages in refereed journals of medicine, science, 
philosophy, bioethics and health policy. He has served on a 
number of national and international committees and consulted 
with many corporations, not-for-profit organizations and 
consumer organizations.
    Dr. Caplan is the recipient of many awards and honors and 
holds six honorary degrees from colleges and medical schools. 
He is the fellow of the Hastings Center, the New York Academy 
of Medicine, College of Physicians of Philadelphia, and the 
American Association For the Advancement of Science. And we 
welcome you here as well, Dr. Caplan.
    Our final witness is Professor Teresa Stanton Collett. From 
1990 through 2003, Professor Collett was a professor of law at 
South Texas College of Law, where she taught various legal 
courses. Since 2003, she has served as professor of law at 
University of St. Thomas College of Law, teaching bioethics, 
property, and professional responsibility. Professor Collett 
has also served as a visiting professor at Notre Dame Law 
School; Washington University School of Law in St. Louis, 
Missouri; the University of Texas School of Law; the University 
of Houston Law Center; and the University of Oklahoma College 
of Law.
    Prior to joining South Texas College of Law, Professor 
Collett was affiliated with the law firm of Crowe & Dunleavy in 
Oklahoma City, Oklahoma. And we welcome you here as well, 
Professor.
    I want to thank all the witnesses for being here this 
afternoon, and we want to make sure that you are aware that 
your testimony will be permitted for 5 minutes, and we actually 
have a lighting system. When the red light comes on, that means 
your 5 minutes is up. I won't gavel you down immediately, but 
we would ask you to keep within that as much as possible. A 
yellow light will come on letting you know you have a minute to 
wrap up, and the green light will be on for 4 minutes.
    It is also the practice of the Committee to swear in all 
witnesses appearing before it, so if you would each please 
stand and raise your right hand.
    [Witnesses sworn.]
    Mr. Chabot. All witnesses have indicated in the 
affirmative.
    Without objection, all Members will have 5 legislative days 
within which to submit additional materials for the record.
    And, Dr. Anand, you are recognized for 5 minutes.

     TESTIMONY OF SUNNY ANAND, DIRECTOR, PAIN NEUROBIOLOGY 
 LABORATORY, ARKANSAS CHILDREN'S HOSPITAL RESEARCH INSTITUTE, 
AND PROFESSOR OF PEDIATRICS, ANESTHESIOLOGY, PHARMACOLOGY, AND 
    NEUROBIOLOGY, UNIVERSITY OF ARKANSAS COLLEGE OF MEDICINE

    Dr. Anand. Thank you. I appreciate the invitation to 
testify before this Committee. I come to you as a researcher in 
the development of the brain, particularly as it relates to 
pain perception during fetal and neonatal life. I am not here 
as a practitioner for procedures required for termination of 
pregnancy or anesthetic practices related to those procedures.
    I think the evidence for and against fetal pain is very 
uncertain at the present time. There has been a recent 
attention on this based on a review article that was published 
in the Journal of the American Medical Association on August 
24th. And I will first try to bring up some points to critique 
that article.
    That article was published by Susan Lee and her colleagues 
at the University of California, San Francisco, and they have 
done a systematic review of the published literature related to 
this subject.
    First of all, they present pain as a hard-wired system, 
whereby pain impulses are conducted from receptors through 
nerves and nerve pathways until so-called perception occurs in 
the sensory cortex. This is an incorrect view of pain, which is 
rather outdated. For the last 40 years, medical research has 
shown, beginning from the gate control theory of pain, that 
pain reception occurs within a multilayered system with 
numerous elements of nerve fibers and cells, the functions and 
the characteristics of which will change depending on the type 
of pain, the context in which it occurs, as well as other 
cognitive and behavioral demands at that time, so that the 
processing of pain and indeed perception of pain doesn't simply 
occur in the sensory cortex. It can occur at various different 
levels within the nervous system.
    Second, Lee and colleagues presume that the structures used 
for pain perception in adults are the very same structures used 
during fetal and neonatal life. The lack of development of 
these structures is then taken as proof that the fetus does 
not--or the preterm neonate--would not feel pain until 29 to 30 
weeks period of gestation. This is again a flawed line of 
reasoning.
    Many years of careful research in which I have participated 
has shown that the neonate, or the fetus, is not a little 
adult;that the mechanisms and structures used for pain 
processing are very different at different stages of 
development. Indeed the nervous system will use the elements 
available at that time, at a particular stage of development, 
to transduce external and internal stimuli, and pain is an 
inherent, innate part of this system.
    These neural elements during development may not survive, 
may not be maintained until maturity. They may have only a 
transient role in conducting pain or pain-related information 
from the periphery to the central nervous system.
    Lastly, I beg to differ with the contention that the 
perception of pain occurs only in the sensory or the 
somatosensory cortex. For example, in conscious adults, if you 
stimulate the sensory cortex, or if you cut it out completely, 
it will not alter pain perception. Stimulation does not produce 
pain perception; removing the sensory cortex does not block 
pain perception.
    So if the viability of the sensory cortex is not a 
necessary criterion for pain perception in adults, why should 
that be a criterion for fetus and preterm infants and neonates?
    Despite this caveat, more recent research shows that there 
is, indeed, alteration in the activity of cortical centers 
related to sensory perception, but this may have more to do 
with the content, but not the context, of the pain experience 
that is being transduced.
    Lastly, I would like to identify that there was ambiguous 
methodology followed in this review whereby 2,100 articles were 
obtained from PubMed through a detailed search strategy. And 
the subsequent disconnect of selecting what evidence to include 
in the data synthesis did not follow the methods of a 
systematic review. If I were to review this systematic review, 
it cannot be replicated, and therefore it calls into question 
the scientific validity of this approach.
    I appreciate the opportunity to present my views.
    Mr. Chabot. Thank you very much, Doctor, and we can get 
more information in the questioning period, of course.
    [The prepared statement of Dr. Anand follows:]

                   Prepared Statement of Sunny Anand



    Mr. Chabot. Dr. Wright, you are recognized for 5 minutes.

 TESTIMONY OF JEAN WRIGHT, PROFESSOR AND CHAIR OF PEDIATRICS, 
                   MERCER SCHOOL OF MEDICINE

    Dr. Wright. Thank you, Mr. Chair, Members of the Committee.
    As you heard my introduction, I spent my career in the care 
and anesthesia of critically ill children, and I have testified 
now twice on this subject here on the Hill as well as testified 
in many States. The opinions I present today are my own, and I 
don't represent any group during this time.
    It is interesting. My own personal sojourn as a clinician 
parallels a lot of the changes that we are talking about with 
respect to fetal pain. When I began over 25 years ago in my 
practice, I would take a premature baby to the operating room, 
paralyze that infant, not give it any pain medication, and we 
would do a heart operation or abdominal operation simply 
because we felt the child was too sick for anesthesia. Never in 
our clinical dialogue did we ever think the child doesn't feel 
pain. We just felt we couldn't give an anesthetic in a safe 
manner.
    By the end of the '80's, data had come out from Dr. Anand, 
from Dr. Nancy Green, from Paul Hickey, from Glover, from many 
others that showed us, yes, we could administer anesthetics 
safely, and not only could we do it safely, it would change the 
outcome of that child.
    You know, it then became apparent to us, no wonder many of 
these preterm babies when they came back to the neonatal 
intensive care unit looked so devastated. In fact, many of them 
didn't survive, which at that time sort of reinforced our 
presumption that they were too sick for anesthesia. But with 
time, with better science, we began to provide anesthesia for 
those preterm babies, and, in fact, we saw that their outcomes 
improved.
    However, as the '80's progressed, new information continued 
to come forward, and our day-to-day practice of pediatric 
anesthesia had to change. At this point in time, it became 
unconscionable for any of us to take a child to the operating 
room or do something painful without providing it an 
anesthetic. For us, the question was not, does the child feel 
pain, or if the child feels pain, the question was, how are we 
going to block the pain?
    So I would say, I think this dialogue today is actually 25 
years lagging behind our clinical practice.
    Well, that was 20 years ago. If you came back with me to 
Savannah tonight and came to our neonatal intensive care unit, 
we would stand between the bed of a 23-week infant, a 26-week 
infant, and you would not need a congressional hearing to 
figure out whether that infant feels pain. We roll back the 
sheets or the blanket, and you would look to the facial 
expression, their response to the heel stick, you would 
understand that.
    Now we know that when Roe v. Wade was decided, 28 weeks was 
the time of viability. Today we look at 23, 24 weeks. So every 
single day we have a perfect window into the womb to look at 
how that child processes pain, and because of the work of Sunny 
and other researchers, we continue to change our bedside 
practice.
    Our previously held assumptions about these tiny babies had 
to be set aside, and we began to understand the fight-or-flight 
hormone response, their heart rate response, their sympathetic 
response. We went so far as to invest in special beds and 
lighting and even sound detection to minimize anything that 
would be seen as stressful, even something as simple as a heel 
stick.
    In the 1990's, many of our NIC units did not have any 
uniform approach to approaching pain in the NIC unit. Today 
they do. Intensive care units have a standardized approach. We 
monitor all the things that I just mentioned. We respect the 
pain. We respect the stress. We do everything we can to avoid 
it, and we treat it when present. Today, pain relief is an 
important step to generating a healthy outcome.
    Well, with that knowledge explosion in the field of pain 
development in the fetus, as I mentioned, the world of 
anesthesia changed, and, you know, I guess I would use a 
phrase, the sound barrier, particularly in the area of partial-
birth abortion, or the discussion around partial-birth abortion 
broke the sound barrier around this whole topic of fetal pain. 
It was in the mid-'90's when I was here and we were discussing 
that legislation and we began to talk about pain in the third 
trimester, but now we know that it is not just the third 
trimester, but it is as early as 20 weeks, and there is data 
that shows 16 weeks and even earlier, many of these infants 
feel pain and have negative outcomes from it.
    You know, as a mother I look at this whole topic, and I 
think about it every time I take my daughter to the doctor. Her 
first question to me is, ``Mommy, is this going to hurt?'' And 
as a mother I feel like it is my duty to find out that 
information and to do everything I can to keep her from a 
painful or stressful situation.
    Well, that is what we are asking today. We are asking for 
legislation that allows that question to be asked by mothers, 
and for them to be given clear, scientific information that 
outlines that pain development. You know, we believe that to do 
less than that would not be giving good informed consent as a 
clinician.
    I will stop right there.
    Mr. Chabot. Thank you very much, Doctor.
    [The prepared statement of Dr. Wright follows:]

                  Prepared Statement of Jean A. Wright

                               BACKGROUND

    I am a physician who has specialized in the care and anesthesia of 
critically ill infants, newborns, children and adolescents my entire 
career. I now head a children's and women's hospital within a larger 
medical center in Savannah. I have testified before two Congressional 
subcommittees on this or a similarly related topic, and have testified 
on the same subject in several state legislative bodies. The opinions I 
render today are my own, and do not represent any group.
    I am trained in the specialties of Pediatrics and Anesthesia, and 
am Board Certified by both. In addition, I am board certified in 
Pediatric Critical Care Medicine, and similarly hold the Anesthesia 
special qualifications in Critical Care Medicine. I continue to 
practice medicine in addition to my administrative responsibilities.

                         HISTORICAL PERSPECTIVE

    My own personal sojourn in medicine historically reflects the 
changes in this field of medicine, and the incorporation of new 
information into clinical practice. My experience and practice in this 
discipline over the past 25 years mirrors that of countless others who 
cared for the critically ill child. I entered the field of pediatric 
anesthesia and intensive care in the early 1980's. Twenty-five years 
ago, it would have been common practice to take a critically ill 
premature infant to the operating room for major abdominal surgery and 
provide little or no pain management. Our knowledge of pain and its 
importance in the overall outcome of the child was unknown, and not 
part of our clinical decision-making.
    For many of the procedures, we felt the premature and newborn 
infants were simply ``too sick and too small'' for anesthesia and pain 
relief. We did not feel that their immature bodies could withstand an 
anesthetic along with their procedure. Little did we know that in our 
avoidance of anesthesia, we were in fact creating a more stressful and 
more harmful environment for these vulnerable patients. We often relied 
on neuromuscular blocking drugs to hold the infant motionless during 
the procedure. Their motionless body did not tell the internal story of 
what they were feeling and perceiving in regards to pain. Today, in 
hindsight, we now understand that the infant was often returned to the 
neonatal intensive care unit in a more debilitated state than when they 
left it pre-operatively. We recognized then, and better understand now 
that it took them days to stabilize, recover, and begin to gain weight, 
and return to their pre-operative state. And we saw many infants that 
never seemed to recover from the procedure.

             CHANGING THE PRACTICE OF PEDIATRIC ANESTHESIA

    However, in the 1980's, new information began to surface, and in 
response to this new body of scientific knowledge, our clinical 
practices of pediatric anesthesia and intensive care had to change.
    The practice of pediatric anesthesia for the premature and newborn 
infant began to incorporate the use of narcotics and other analgesics 
on a regular basis. Soon it became unacceptable to consider taking an 
infant to the operating room for major heart or abdominal surgery 
without recognizing the stress response this would generate in the 
infant, and developing an anesthetic plan that would safely block or 
blunt those responses. By the end of the 1980's, the work of Dr. Anand, 
Dr. Hickey, Dr. Ainsley-Green and others surfaced in a myriad of our 
most respected American and British Journals. Their elegant work, along 
with the works of others, demonstrated that this pain response in the 
infant was not an inconsequential byproduct of a surgical procedure 
that could be ignored at the anesthesiologist's whim or personal 
choosing. For us practicing in the field, it was not a question of ``if 
the premature or term infant felt pain'' . . . it was ``how do we block 
the pain to improve the child's outcome.'' For us the question became 
``how,'' not ``if.''

         EXTENSION TO CARE IN THE NEONATAL INTENSIVE CARE UNITS

    That was twenty years ago. Today, if you walk with me in our 
neonatal intensive care unit, you will see the same concern exhibited 
for our tiniest of all infants. The concern about how to block pain, 
how to eliminate stress, how to improve survival, and how to minimize 
the complications that frequently accompany premature infants is on the 
forefront of the care-givers mind. Viability for the premature infant 
has long since passed the 28 week gestational age definition that 
existed when Roe v. Wade was decided. For some infants, viability has 
been pushed back to 23-24 weeks. And so many of our neonatal units now 
have infants of 23 weeks and older gestational ages.
    Because of the work of many researchers in the fields of pediatric 
anesthesia, their scientific inquiry led to a change in practice. Early 
in the 1990's, many neonatal units considered the infants too weak or 
sick for pain-relieving medications. Our previously held assumptions 
are replaced with first hand observations of these tiny patients, with 
monitoring of the hormones released from the neuro-humoral axis (our 
fight and flight hormones), and with a clearer understanding of the 
development of pain pathways in the fetus. We invest in expensive beds 
to eliminate noise and pain, and in a care plan that minimizes painful 
sticks and pokes. We now regard even the pain of a simple heel stick 
for a routine blood sample.
    In the early 1990's many neonatal intensive care units did not have 
uniform approaches to minimizing painful events, or pre-treating 
infants prior to painful and stressful procedures. Today they do. We 
are so mindful of even the stress of noise and touch, that neonatal 
intensive care units monitor the sound level, and minimize the number 
of times an infant is handled, poked or stress, . . . all in the name 
of decreasing pain and stress, and improving clinical outcomes. We 
respect the pain and the stress, we do everything we can to avoid it, 
and we treat it when present.
    Today, pain relief is an important step to generating a healthy 
outcome. Today with the survival of 23 and 24 week infants, we no 
longer speculate as to whether they feel pain. We understand it, try to 
avoid it, and treat it when appropriate.
    the disconnect between pain in the neonate and pain in the fetus
    With the knowledge explosion in the field of pain development in 
the fetus, the world of pediatric anesthesia and neonatal intensive 
care changed. Why did this same information not change the world for 
the unborn? To regard pain in the unborn required that we consider pain 
during in utero surgical procedures, but also pain to the unborn during 
an abortion. Furthermore to recognize the unborn's ability to perceive 
pain would require that we disclose that information to the mother 
prior to the procedure as part of the informed consent. Perhaps, with 
that information at hand, the mother might change her position 
regarding an abortion for her unborn. Therefore the scientific 
information regarding pain in the unborn was not integrated with the 
dialogue around the procedures of abortion.
    In the mid 1990's the discussion around partial-birth abortion 
broke the sound barrier around fetal pain. A discourse followed around 
whether the infant felt pain, whether maternal anesthesia could or 
would treat the pain, and whether informed consent for the procedure 
should disclose the possibility of pain to the unborn. Discussions on 
partial birth abortion brought into focus the developmental realities 
of the infant in the 3rd trimester, and juxtaposed that stage of human 
development with its ex-uterine counterpart, the preterm infant. 
Further scientific discoveries over the past decade have only served to 
underscore the anatomy and physiology of the pain pathways in the 
unborn and preterm infants. Now several states have begun to wrestle 
with the legislative aspects of both protecting their most vulnerable 
subjects from pain, and from informing their mothers of its presence 
and its need for treatment.

                      THE ROLE OF INFORMED CONSENT

    As a mother myself, every procedure I face with my own child is 
preceded by her first question, ``Mommy, will this hurt?'' It is my 
natural maternal response is to try to avoid all forms of pain and 
suffering for my child. As a parent I want to know about the 
possibility of pain, and my child (if old enough) wants to know as 
well. But for the child unable to speak, or unable to understand the 
upcoming flu shot or laceration repair, the parent stands in the gap 
gathering clinically relevant information, and exercising prevention 
and protection against harmful or painful situations. It is our 
question to ask, ``Will my child feel pain?''
    Parents are entitled to this information for their children. They 
need it explained in a clear and meaningful way that they as laypeople 
can understand. This standard exists for children born; now we raise 
the standard and ask that it exist for those unborn. ``Will this 
surgery or procedure on my premature baby cause pain? What will be done 
to alleviate the pain and suffering?'' We should answer those questions 
as clearly for procedures concerning the unborn as the born.

                        WHAT WILL WE TELL THEM?

    Beginning as early as 6 weeks of development, tiny pain fibers 
pepper the face and oral mucosa. The spread of these unique fibers 
proceeds in a head to toe fashion until by the 20th week, they cover 
the entire body. Not only do these fibers exist, they do so with 
greater density per sq inch than in the adult.
    These fibers will connect with the spinal cord, and then connect 
with fibers that ascend to the thalamus and cortex. By the 10-12th 
week, the cortex is developing, and by the 15th week, the fibers from 
below have penetrated into the cortex.
    Studies at 16 weeks and beyond show hormonal responses to painful 
stimuli that exactly duplicate the responses that the infant and adult 
possess. The critical difference is that the unborn lacks the ability 
to modulate itself in response to this pain. Therefore, the responses 
of hormones to painful procedures show a 3-5 x surge in response. This 
ability to down-regulate the response in light of painful stimuli will 
not exist until the unborn child is nearly full term in its gestational 
age. Further studies demonstrated that the magnitude of pain response 
reflected the magnitude of the stimulus and blocking the pain receptors 
with narcotics, blocked the hormonal surge. By 19-20 weeks, EEG 
recordings are readily documented, and somatosensory evoked potentials 
(SSEP) are seen by 24 weeks.
    After 20 weeks of gestation, an unborn child has all the 
prerequisite anatomy, physiology, hormones, neurotransmitters, and 
electrical current to ``close the loop'' and create the conditions 
needed to perceive pain. In a fashion similar to explaining the 
electrical wiring to a new house, we would explain that the circuit is 
complete from skin to brain and back. The hormones and EEGs and 
ultrasounds record the pain response, and our therapies with narcotics 
demonstrate our ability to adequately block them. Therefore, any 
procedure performed on an unborn child after 20 weeks should take this 
into consideration.

          ``Can the unborn fetus feel pain at this stage of 
        development,'' we would be asked.

          ``Is there something that can be given to alleviate 
        the pain?''

          And we would answer, ``Yes,'' to both.

          WHY ISN'T TREATING THE MOTHER ENOUGH FOR THE CHILD?

    Most obstetrical anesthetic care plans use spinal, caudal, epidural 
or other forms of nerve blocks to interrupt the cause of pain and the 
perception of pain. We refer to this as regional anesthesia. The 
sensory nerves that innervate the abdominal wall and the lower pelvic 
structures are anesthetized in the same manner that a tooth is numbed 
by a nerve block with Novocain at the dentist. The mother's specific 
nerves, or nerves that innervate the perineum, are blocked by these 
regional anesthetic techniques. While this serves as excellent 
anesthesia for the mother, it provides no anesthetic relief to the 
unborn child.
    Advances in intra-uterine surgery have required more detailed 
thinking about pain management of the unborn during these operations. 
In essence, two anesthetics are planned. One for the mother and one for 
the unborn child. If an intravenous anesthetic is used, such as a 
narcotic, it must go through the mother's circulation, and then enter 
the fetus' circulation, and the reach the fetal brain, in order to 
achieve pain relief. Dosing via this route must be such to achieve a 
safe level of anesthetic in the unborn. Similarly, doses of narcotics 
may be given directly into the amniotic sac, or into the vein of fetus. 
Experience with premature infants shows us that the dose of narcotic is 
small, and can be given safely, and is inexpensive, and is effective in 
blocking pain and improving outcomes.

                               CONCLUSION

    The development of the perception of pain begins at the 6th week of 
life. By 20 weeks, and perhaps even earlier, all the essential 
components of anatomy, physiology, and neurobiology exist to transmit 
painful sensations from the skin to the spinal cord and to the brain.
    Infants in the neonatal intensive care unit give us a clear picture 
into life in the womb for the unborn fetus age 23-40 week gestation. 
Our understanding of the presence of pain, and the need to clinically 
treat this pain in the premature infant leads us to understand the 
presence of pain, and the need to treat pain in the unborn fetus of the 
same gestational age.
    Our conscience as clinicians requires us to apply the same 
standards of informed consent that we would to any other patient in a 
same or similar situation. We no longer can ignore the fact that 
maternal anesthesia treats the mother's pain perception during these 
procedures, but leaves the unborn with no pain protection.
    Our knowledge of this field has changed our clinical practice and 
now the legislative issues must change as well.

    Mr. Chabot. Dr. Caplan, you are recognized for 5 minutes.

TESTIMONY OF DR. ARTHUR CAPLAN, DIRECTOR, CENTER FOR BIOETHICS, 
    AND CHAIR, DEPARTMENT OF MEDICAL ETHICS, UNIVERSITY OF 
                          PENNSYLVANIA

    Mr. Caplan. Thank you, Mr. Chairman and Members of the 
Subcommittee, for the opportunity to testify before you in this 
legislation. I know you have the written testimony there, so I 
am going to narrow my remarks down to four subjects.
    First, is there consensus on fetal pain? I am not an expert 
on fetal pain like some on the panel here, but I have access to 
Children's Hospital of Philadelphia, which is an institution 
that has many experts in fetal pain there. And so when this 
hearing came to my attention, I went over and asked them what 
they thought about fetal pain, when it begins, when is the age 
of onset, and it is clear to me that there is not a consensus.
    Secondly, I want to say a word about risk and benefit as 
presented in the script that is in the legislation concerning 
risk to mothers of the administration of pain-relieving 
analgesics and anesthesia to the fetus.
    Third, I am just going to say a word about is it a good 
idea to get use a script to get informed consent, which is 
perhaps of less interest to some on the Committee, but is of 
keen interest to me in terms of trying to make sure that all 
Americans get informed consent in research and therapy; and 
lastly, whether it is a good idea for Congress to come into 
this area with mandates about how to achieve certain social 
goals.
    Firstly, as I said, I had an opportunity to go over to this 
hospital. It is full of all kinds of experts, and I basically 
just asked around to my colleagues, and I got answers back that 
were all over the place, from 20 weeks, somebody reported they 
thought perhaps younger. Other people said absolutely not until 
24, 26 weeks; all kinds of comments about brain development, 
all kinds of ideas about what is meant by pain.
    I looked in the literature I would tell one of my students 
to do in pursuing informed consent, and as we have heard, there 
is a wide spectrum of opinion about when pain begins. The JAMA 
article that Dr. Anand reports about sets the level at 28 weeks 
based upon a thorough review in a leading medical journal. 
Other documents and reports from the United States and Britain 
said 26 weeks, 24 weeks; some say 20 weeks.
    It doesn't matter to me in a sense whether a particular 
study is right or wrong or beyond critique. That is what 
scientists do. What matters to me is there is no clear-cut 
consensus out there. So to mandate a triggerpoint and say this 
is when it has to be done seems to me to not be consistent with 
what Congress ought to be doing about invoking the power of 
science to serve a social or an ethical goal even if it is an 
admirable or perceived as an important goal. I don't think the 
consensus is out there to support what is claimed in the 
legislation.
    Secondly, on matters of risk/benefit, there is a lot to be 
said there. But let me narrow it down to one item: What is told 
to the mother about the risks that she faces if somebody tries 
to administer pain-relieving mechanisms to the fetus directly 
through her body. When this is done, it is usually in the 
context of fetal surgery.
    Again, I have been involved in many review boards that have 
tried to assess the ethics of fetal surgery. They are tough 
because you are risking two lives. Normally the risks involved 
in fetal anesthesia in utero are acceptable because you are 
trying to save the fetus, you are trying to help the person 
have a very much wanted child, and mothers will take a lot of 
risk. But in context we are talking about here, the exact 
phrasing in the legislation, there may be risk in the 
administration of anesthesia to the mother, is not at all 
adequate to what is going on relative to direct administration 
of pain relief prior to abortion.
    So I would urge the Committee to take a close look there 
and ask the question, is that an adequate informed consent 
about risk to mother, and will women, in fact, be weighing the 
risk and benefits appropriately by talking about the other uses 
of fetal anesthesia which come from the fetal surgery setting, 
not from situations where someone is going to try and directly 
go to the fetus from the outside? That is going to be a pretty 
risky activity not adequately captured, I would suggest, in the 
legislation right now.
    The third point I wanted to mention is just whether scripts 
make sense for informed consent. And I don't know of any 
situation in American health care where we give people scripts 
and say read them and get informed consent to research or 
therapy. When people do do that, we actually yell at them and 
say that isn't informed consent.
    Informed consent is a process. Let me put it simply: Not 
every mother is the same. Not every mother is going to have the 
same health background. Not every fetus will be the same; some 
will have terrible genetic deformities, some are going to be 
hale and hearty. The situations are not well captured by a 
script, and if you try to achieve informed consent just by 
reading off a script, I would tell you that is not the standard 
of ethics that ought to prevail in the United States today in 
any setting.
    So it seems to me the script idea is suspect if what we 
really want to do is get a good informed consent. And for the 
reasons I mentioned, the script that is there perhaps is 
inadequate.
    Lastly, I think it is not a good idea for Congress to try 
and practice medicine. I understand the subject is one of grave 
concern to many people, but it seems to me physicians hold 
different views about this matter. What we have to do is 
encourage them and urge them to give information to their 
patients, to have those dialogues about what they deem 
important and appropriate to protect the health, welfare and 
comprehension of their patients. I don't know if that comes 
well from Congress.
    Mr. Chabot. Thank you very much, Dr. Caplan.
    [The prepared statement of Mr. Caplan follows:]

                 Prepared Statement of Arthur L. Caplan

    Thank you Mr. Chair and members of this Committee for the 
opportunity to testify before you on the proposed legislation which 
would require that women seeking abortions be informed about the pain 
to be experienced by their unborn child. My opinion is that this is not 
legislation that the House should enact. I will present a number of 
ethical issues that the committee may wish to consider as it examines 
this legislation.
    I will organize my testimony as follows: first, I will address the 
presumptions behind the proposed legislation and the comment on what is 
known or in dispute about those presumptions, second, what informed 
consent requires in terms of risk and benefit disclosure, third, I will 
offer my opinion as an expert on the ethics of informed consent on the 
advisability of enacting legislation which mandates the content of a 
script be read to patients by their physicians, and, lastly, I will 
offer some comments on the advisability of Congress inserting itself 
into the practice of medicine in the United States and the morality of 
intruding into the doctor/patient relationship.

                               FETAL PAIN

    The proposed legislation before the House contends that unborn 
``children'' have the physical structures necessary to experience pain 
at the age of twenty weeks of development. There is also a contention 
that giving anesthesia or analgesics to a pregnant woman does not 
diminish the pain capacity of an unborn fetus. And it maintains that 
medical science is capable of reducing fetal pain by delivering 
anesthesia or pain-reducing drugs directly to the ``pain capable unborn 
child.''
    These are the findings used to them justify an unprecedented 
requirement in the history of American medicine--the provision by 
telephone or in person of a required statement by a physician or the 
physician's agent to offer the option of the use of anesthesia or pain-
reducing drugs ``to the pain capable unborn child.''
    The question this committee must carefully consider is whether 
there is as a matter of empirical fact consensus about when a fetus is 
capable of feeling pain. If the rationale for mandating disclosure 
about techniques to minimize fetal pain prior to abortion rests on 
science and not the whim or presumption (and I use those terms 
intentionally) of non-scientists and non-physicians then there must be 
clear consensus on the part of the medical profession that at twenty 
weeks a fetus is pain-capable.
    This is an enormous body of evidence which shows that the 
presumption of medical consensus does not exist about the question of 
when a fetus becomes pain-capable.
    A variety of groups and commissions in the United Kingdom and 
researchers in the United States and other nations have, in recent 
years, examined the question of when a fetus can feel pain. None of 
them has reached a consensus that is reflected in the proposed 
legislation.
    For example, five years ago the Commission of Inquiry into Fetal 
Sentience in the House of Lords in England looked at the question of 
when can a fetus feel pain. They found that a fetus may be able to 
sense some ``form of pain sensation or suffering'' when the cortex has 
begun forming connections with the nerves that transmit pain signals.
    This occurs ``after 23 weeks of growth.''
    ``By 24 weeks after conception the brain is sufficiently developed 
to process signals received via the thalamus in the cortex.'' The noted 
that, ``While the capacity for an experience of pain comparable to that 
in a newborn baby is certainly present by 24 weeks after conception, 
there are conflicting views about the sensations experienced in the 
earlier stages of development.''
    A year later another distinguished group of physicians from the 
Royal College of Obstetricians and Gynecologists in the United Kingdom 
examined the same issue. The panel consisted of experts in fetal 
development, law and bioethics.
    The group determined that a fetus can only feel pain after nerve 
connections became established between two parts of its brain: the 
cortex and the thalamus. This happens about 26 weeks from conception. 
Professor Maria Fitzgerald of University College London, author of the 
working group's report, said that ``little sensory input'' reaches the 
brain of the developing fetus before 26 weeks. ``Therefore reactions to 
noxious stimuli cannot be interpreted as feeling or perceiving pain.'' 
W.G Derbyshire writing in the Bulletin of the American Pain Society in 
August, 2003 basically concurred with the view that the fetus becomes 
pain capable at 26 weeks.
    This year a meta-study--a review of existing medical studies into 
fetal pain--was published in the Journal of the American Medical 
Association (JAMA). The paper concluded that in reviewing all recent 
published studies that a fetus's neurological pathways that allow for 
the ``conscious perception of pain'' do not function until after 28 
weeks' gestation.
    It is possible to criticize each of these studies and reports. And 
there are many more such reports and studies with different 
conclusions. But that is precisely the point the Congress must 
carefully reflect upon before enacting any legislation pertaining to 
fetal pain.
    There is no consensus among the medical and scientific experts 
about precisely when a fetus becomes pain-capable. Some put the point 
at 28 weeks. Others say 26 or 24 and still others younger still. But, 
without a clear consensus legislation mandating that a health provider 
or physician represent something as a fact which is not known to be 
true or agreed upon by the majority of medical and scientific experts 
as valid would not only be poor public policy it would set a terrible 
precedent for other topics where Congress might choose to mandate 
disclosures about ``facts'' for political or even ethical reasons which 
have no foundation in science or medicine.
    Mandating the provision of information as factual or as the 
standard of care or as a matter of consensus among experts when the 
information is none of these could open the door to an enormous 
slippery slope regarding what those seeking health care are told. In 
order to achieve political ends even well-intended ends it is 
exceedingly dangerous as history shows to try and bend science to serve 
political goals.

                       CONSENT, RISK AND BENEFIT

    If Congress decides to mandate the provision of information to 
women about fetal pain prior to abortion then it will have to carefully 
consider the content of what is being mandated and whether it 
adequately reflects the standards of full disclosure of risk and 
benefit as well as the provision of information about all options and 
alternatives.
    In creating a standard of disclosure about fetal pain and the use 
of anesthesia it will be necessary to disclose whether or not existing 
techniques are known to relieve fetal pain, at what age of fetal 
development and what evidence exists to support such claims.
    In notifying women that anesthesia administered to them will not 
provide pain relief to their fetus again it will be necessary to state 
with more clarity then appears in this legislation why that is held to 
be so as a matter of medical consensus and what the probability is of 
the statement being wrong. Informed consent will also require a more 
careful and precise delineation of the risks of anesthesia to the woman 
if it is directly administered to the fetus. The risk of fetal 
anesthesia is usually viewed as trivial since they are usually 
encountered during efforts to use surgery to repair a life-threatening 
risk to the fetus. They become far less trivial when placed in the 
context in which death to the mother becomes a possibility with 
uncertain benefit to the fetus. And some discussion will have to be had 
about the risks to the woman's health of continuing various stages of a 
pregnancy versus terminating them depending upon her own health and 
medical condition.
    None of these elements of risk and benefit appear in the mandated 
information to be disclosed by the proposed legislation. I doubt 
whether there are many IRBs in the nation which would approve the 
content of the disclosure as adequate to the standards of informed 
consent that have come to be expected for new, innovative and untested 
procedures in medicine.

               MANDATING THE CONTENT OF INFORMED CONSENT

    One of the most troubling aspects of the proposed legislation is 
the concept of the government requiring a mandated script or formula be 
used to secure informed consent in a doctor-patient relationship or 
health care provider-patient relationship. I know of no other area of 
health care where Congress or a state government has mandated the 
content of informed consent.
    It is hard to justify a fixed script since every patient is 
different, not all pregnancies are alike, not all fetuses have the same 
capacities at the same age of development and not all women face the 
same set of risks or have the same ability to understand and process 
information. Informed consent is not a formula--it is an individualized 
communication between provider and patient. To mandate that one size 
will fit all when it comes to the issue of fetal pain and what might be 
done about it is to fly in the face of decades of medical experience 
about informed consent as well as numerous court cases in which judges 
have found that simply reading a piece of paper or running through a 
standard template does not satisfy the requirements of informed 
consent.

            INTERFERENCE WITH THE PRACTICE OF MEDICINE AND 
                    THE DOCTOR/PATIENT RELATIONSHIP

    It is my opinion that mandating the specific nature of what must be 
communicated to a woman considering an abortion or any other medical 
procedure is an unwise interference with the practice of medicine by 
Congress. One may well wish to discourage women from choosing abortions 
but forcing providers to read claims about fetal pain is showing no 
respect for the ability of the medical profession to present 
information about pregnancy, abortion and fetal pain to women. 
Moreover, since different physicians hold different views about fetal 
pain and about the ability to control that pain and since different 
providers will have different skills when it comes to the safe 
administration of anesthetic agents or anesthesia to women or fetuses 
it is overreaching for Congress to insist on precisely what each 
provider must say to each woman prior to an abortion or any other 
medical procedure.
    In summary there are many issues this committee and Congress must 
consider before moving forward with the proposed legislation on Pain of 
the Unborn. There is no consensus among experts about when a fetus 
becomes pain capable. There is no consensus about the efficacy of 
existing agents to relief pain in a fetus. There is no single standard 
that can be set as to what the risks are of attempting to administer 
pain relief directly to a fetus. This makes it difficult for Congress 
to claim a sufficient foundation for claims about the pain capabilities 
of the fetus at various stage of development.
    It is also difficult for Congress to mandate the content of 
informed consent without reducing consent to the provision of a 
``boilerplate'' set of facts--something which we have been advising 
doctors not to do in the name of informed consent for many decades.
    And even with the best of motives intruding into the doctor-patient 
relationship when the facts are unclear and the risk unknown opens the 
door to slippery slope with enormous ramifications for the future 
practice of medicine. This is a door that ought be opened with the 
greatest of care and caution if at all.

    Mr. Chabot. Professor Collett, you are recognized for 5 
minutes.

TESTIMONY OF TERESA S. COLLETT, PROFESSOR OF LAW, UNIVERSITY OF 
                    ST. THOMAS SCHOOL OF LAW

    Ms. Collett. Thank you, Mr. Chairman, Mr. Nadler and 
Members of the Committee.
    I am the author of one of only two existing Law Review 
articles on this subject. It was published in Pepperdine Law 
Review in 2003, and I wrote on this topic because, in fact, it 
was a topic that I anticipated various State legislatures and, 
in fact, Congress legislating on.
    When you look at the most recent abortion textbook for 
medical schools, edited by Maureen Paul, when she has a chapter 
on counseling of abortion patients, they speak specifically 
about the concern that abortion patients express about whether 
or not the fetus will feel pain during the procedure. And the 
advice is given in that particular chapter by Ms. Baker that in 
order to respond to this concern on the part of women seeking 
abortions, that women should be given information about fetal 
pain.
    In doing research for that particular article, what I found 
was, in fact, in the United Kingdom, the Royal College of 
Obstetricians and Gynecologists at the direction of Parliament 
did an extensive study of this topic under the direction of Dr. 
Glover, who describes herself as a pro-choice physician, and 
determined that they should adopt a protocol that requires the 
use of fetal anesthetic or feticide through the use of 
potassium chloride or digitalis or some other chemical directly 
to the heart of the fetus prior to performance of abortion or 
fetal anesthetic prior to any fetal surgery at age 24 weeks. 
That protocol then in 1997 was brought into question at the 
direction of the British Medical Research Group, and they are 
now discussing lowering it to age 20 weeks.
    In fact, the British Medical Association directs that even 
if there is no incontrovertible evidence, the consensus that 
Dr. Caplan would demand, that fetuses feel pain, the use of 
pain relief, when carrying out invasive procedures, may help 
relieve the anxiety of parents and of health professionals. 
That last clause, in fact, is what motivated the province of 
Alberta, our neighbors to the north, to adopt their 
professional protocol that requires the use of feticide for any 
abortions at age 20 weeks prior to the performance of an 
abortion.
    Mr. Nadler. Use of what did you say?
    Ms. Collett. Feticide, the use of digitalis or potassium 
chloride directly to the heart of the fetus prior to the 
abortion. The reason for that, Representative Nadler, is 
because of the techniques of abortion that are used most 
commonly at that point or beyond that are either dismemberment 
abortion or the use of the D&E or the D&X abortion, which I am 
sure Members of this Committee are familiar with, or saline 
abortions on rare occasions. They are not used very often 
anymore because of the other two procedures being preferred, 
according to various CDC statistics. Because of the pain that 
we may anticipate with either of those procedures, Alberta 
requires that physicians induce the death of the fetus prior to 
that. Because of this concern on the part of women, informed 
consent would require that they be informed.
    The final piece of evidence I would bring to the attention 
of this Committee comes not from foreign jurisdictions, but, 
interestingly enough, from the most recent trial in California 
on the Federal partial-birth abortion ban where Dr. Katharine 
Sheehan testified as an expert witness on behalf of the 
plaintiffs in challenging the ban, where she said that as 
medical director for the Planned Parenthood San Diego clinic, 
that it was the practice of that clinic to always offer to 
engage either in feticide or to offer fetal anesthetic for any 
abortion after--at the period of gestation of 22 weeks or more, 
and that she had never had a patient decline it.
    This is an issue that women who chose, because of perhaps 
tragic circumstances, to go forward with abortion are concerned 
about.
    Frankly, of all of the many issues related to abortion, if 
there is one that we can find common ground on, surely it is 
the issue that where necessity, as the woman perceives it, 
drives her to this, there should be no unnecessary suffering on 
the part of the unborn, and that women should have the 
opportunity to know that there is at least a respectable body 
of research that suggests that that possibility exists.
    Thank you.
    Mr. Chabot. Thank you, Professor Collett.
    [The prepared statement of Ms. Collett follows:]

              Prepared Statement of Teresa Stanton Collett




    Mr. Chabot. I now recognize myself for 5 minutes for the 
purpose of asking questions.
    I would just note that we are not talking about an 
insignificant number of abortions after 20 weeks. Each year in 
this country, I understand there's--depending on the figures, 
it is somewhere up to 20,000 or so of these types of abortions 
that take place after 20 weeks.
    Professor Collett, let me begin with you if I could, and I 
will get to the heart of the matter, cut to the chase so to 
speak.
    In your opinion, are informed consent provisions requiring 
that information on fetal pain and anesthesia be given to 
pregnant women considering an abortion consistent with the 
Supreme Court's abortion jurisprudence?
    Ms. Collett. Yes. Casey was quite clear about that. You 
read a portion of the
    Casey plurality opinion, and they go beyond that to give 
the example of, we think it would be constitutional for the 
State to require in order for there to be informed consent to a 
kidney transplant operation that the recipient be supplied with 
information about the risks to the donor as well as the risks 
to himself or herself. It is quite clear that simply an 
informational requirement as has been proposed would pass 
constitutional muster.
    Mr. Chabot. Thank you.
    Dr. Anand, let me turn to you next if I can. In your 
opinion, at what point does an unborn child likely experience 
pain, and what evidence best supports that opinion?
    Dr. Anand. Thank you. This is a question that is hotly 
debated, as Dr. Caplan pointed out, and it is not very clear 
from a summary of the evidence as it really does not meet the 
criterion of something that can be turned on or turned off.
    The development is a slow and continuous process, and 
different centers of the brain participate in sensory 
perception at different stages, so it is very unclear and hard 
to pinpoint as to exactly when. Yesterday the fetus did not 
feel pain; today the fetus does feel pain. And it is unlikely 
that that happens.
    What possibly occurs is a gradual increase in the ability 
of the fetus to recognize some stimuli which may cross a 
certain threshold of nociception and for those stimuli to be 
transduced at some points.
    My opinion is, based on evidence suggesting that the types 
of stimulation that will occur during abortion procedures, very 
likely most fetuses at 20 weeks after conception will be able 
to perceive that as painful, unpleasant, noxious stimulation.
    Mr. Chabot. Thank you. And is it your opinion that the pain 
perceived by the unborn is possibly more intense than that 
perceived by term newborns or older children?
    Dr. Anand. No. There is--that is not my opinion. And I 
really don't have any data to suggest that that could be true, 
or the other way. There is----
    Mr. Chabot. Have you heard that opinion expressed by others 
in your field?
    Dr. Anand. There has been some data to suggest that in 
preterm neonates, there is a lower threshold to pain than in 
full-term neonates and in older children or adults. Whether we 
can extend that back into gestation is not known at this point.
    Mr. Chabot. Thank you.
    Dr. Wright, let me ask you, could you please describe some 
of the responses to noxious or offensive or unpleasant stimuli 
that you have witnessed in preterm infants?
    Dr. Wright. Sure. You know, we know that these pain 
receptors are unique. When you look at them under a microscope, 
they don't look like any other kind of cell, and they start on 
the face, and as doctor Anand said----
    Mr. Nadler. Is that true in all stages or only for 
neonates?
    Dr. Wright. Excuse me, sir?
    Mr. Nadler. Were you making that as a general statement or 
only for neonates?
    Dr. Wright. I haven't finished the sentence, sir, so I am 
not quite sure what you are interrupting.
    Mr. Nadler. When you said these pain receptors are unique, 
they don't look like any other kind of cell.
    Dr. Wright. Right. They start at 6 weeks of gestation. They 
cover the entire face even more densely per square inch than 
adults and cover the entire body. So by the time this baby is 
20 weeks of gestation, there are these pain receptors over the 
entire body, the entire mucosa, the exact same kind that we 
have as full-term babies and we have as adults. Is that what 
you are asking?
    And because that pain fiber sits there, it connects with 
the spinal cord and, most importantly, sends messages, sends 
impulses to the bran to those higher levels and back down. When 
we put on a clamp on a toe, when we do a heel stick, that is 
probably the most common thing we do in the neonatal intensive 
care unit, take a lancet, hit the heel for blood, squeeze that 
little heel and put it on a piece of blotter paper and insert 
it in a test tube, those children will withdraw. That is not 
just a knee-jerk reflex. That's an integrated, full arc up 
through the brain and back. They grimace, they pull back.
    Even the studies of children in utero when they had 
repeated liver samples or transfusions done either through 
their liver or through their umbilical cord, those children 
positioned themselves to avoid noxious stimuli. Dr. Anand used 
a fancy word, nociception. We would say in Savannah just 
painful or obnoxious stimuli. They reposition themselves that 
way.
    So to a lay person standing next to a bed, there is no 
question that that is pain. It is not a hiccup, it is not a 
reflex. You know, we recognize it for what it is.
    Mr. Chabot. Thank you very much. My time has expired.
    The gentleman from New York is recognized for his time as 
well.
    Mr. Nadler. Dr. Anand, do you agree that there is still no 
consensus within the field on the question of when the fetus 
starts perceiving pain?
    Dr. Anand. Yes, I did.
    Mr. Nadler. Thank you.
    Also, Dr. Anand and I think Dr. Caplan, while some States 
have pursued the script approach, the Federal Government so far 
has not. Do you think we ought to require doctors to read 
scripts written by Congress on this or other issues?
    Let me just broaden that a bit. I have considerable 
sympathy for a lot of the ideas in this bill and in what I am 
hearing. The problem I have is Congress directing a specific 
script which says Congress makes this medical finding. Would 
you think that that is a good approach, or might it be a better 
approach to simply say that doctors shall inform the patient or 
the patient--the prospective mother of what the current state 
of medical knowledge is in his or her opinion and tell her pros 
and cons of using anesthesia?
    Dr. Anand?
    Dr. Anand. I agree with you. I think there is consensus in 
the medical and scientific research community that there is a--
there is no possibility of pain perception in the first 
trimester. There is uncertainty in the second trimester. There 
is no discussion in the third trimester. There is consensus 
that pain perception is fully developed and----
    Mr. Nadler. I am asking you about the script in particular.
    Dr. Anand. With regard to a script, I agree that each 
medical encounter has specific factors that determine the way 
in which an interaction occurs between the health care 
professional and the patient, and so having a script, I think, 
will be counterproductive in that situation.
    I think, however, the health care professional must have 
this professional responsibility to provide the information 
that is available at that time.
    Mr. Nadler. So a bill that simply said the medical 
profession should recognize--well, it should exercise its 
normal responsibility would be preferable?
    Dr. Anand. Yes.
    Mr. Nadler. Thank you.
    Dr. Caplan.
    Dr. Caplan. Well, I think the use of a script to achieve 
informed consent is a mistake, and I think it is a mistake to 
have Congress do it.
    I think that the script that is in the bill is a clear 
example of this. It asserts more consensus than is true about 
fetal pain. It doesn't allow the nuance of talking to different 
women with different backgrounds, different educational levels, 
and different medical situations, different health situations. 
It won't be equivalent risk to give fetal anesthesia to a woman 
who has diabetes and a bunch of other complications and high 
blood pressure and 40 years old and as it would to somebody who 
is 22 and very healthy. Using scripts is not the way to achieve 
informed consent in terms of the nuance of what has to happen 
in medical care.
    Last comment I would make is it seems to me that what we 
want to do is encourage honest discussion, open discussion 
about fetal pain capability, about options to control it, but 
the way to do that is to ask Government agencies to sponsor 
workshops, to achieve consensus panels, to hold the kinds of 
retreats and conferences that I go to a lot where people are 
educated and informed about this.
    I don't see it done well by mandating it out of a bill that 
is going to be one size fits all, and that is not the world in 
which medicine is practiced.
    Mr. Nadler. Well, you are describing how science and 
medicine normally works. Do you see a useful role for any 
legislation in this field, a bill that said that doctors should 
discuss this with patients, or is that necessary at all?
    Dr. Caplan. I don't think it is necessary at all. I think 
what you do is encourage physician education, physician 
training through outlets like the National Institutes of 
Health.
    Mr. Nadler. Let me ask Dr. Anand the same question.
    Dr. Anand. I think there is--I agree with Dr. Caplan that 
informed consent is a process, that the interaction between the 
physician and the patient may occur at one time and may occur 
repeatedly until the procedure is performed.
    So I think medical professionals should be encouraged to 
develop----
    Mr. Nadler. But my question is Dr. Caplan described a 
process of holding all kinds of colloquiums on training medical 
professionals as to what their ethical duties are, in telling 
you about whatever the latest findings on pain are, and the 
latest findings on the advantages and risks of anesthesia and 
so forth. Granted that we should certainly do that. Do you see 
that any legislation is necessary or helpful in that, or is 
that sufficient?
    Mr. Chabot. The gentleman's time has expired, but you can 
answer the question.
    Dr. Anand. I feel that practitioners who are using this 
information should get--should be encouraged to remain up to 
date regarding this information. And in that sense, some type 
of continuing medical education should be required; should be 
required maybe not by law, but by professional standards.
    Mr. Nadler. I ask unanimous consent for 1 additional 
minute.
    Mr. Chabot. Without objection, a half minute.
    Mr. Nadler. Thank you.
    So do you think a good approach would simply be legislation 
mandating that kind of continuing medical education on that 
subject?
    Dr. Anand. I don't think legislation would be the answer. I 
think there are many other avenues that can be followed in 
order to encourage research in this area and to demonstrate 
knowledge in this area.
    Mr. Nadler. Thank you very much.
    Mr. Chabot. Gentleman's time has expired.
    The gentleman from Arizona Mr. Franks is recognized for 5 
minutes.
    Mr. Franks. Well, thank you, Mr. Chairman.
    Mr. Chairman, I have to suggest that I have I am a little 
troubled by just a lot of the discussion here. Dr. Wright has 
answered a lot of the questions that I wanted to ask, and I 
think the thing that has troubled me here is that we have 
engaged in this pseudo-intellectual debate about whether a 
child at 20 weeks feels pain. And yet Dr. Wright has testified 
that a preemie at 20 weeks, when their heel is stuck or some 
noxious stimuli that even a 10-year-old could suggest would 
cause the child to feel pain, that the child pulls away. I have 
seen children in neonatal units cry when their blood is taken.
    And I guess I am really concerned about where our humanity 
is going here, Mr. Chairman, because there is so many anecdotal 
things that I could point to that really just concern me, but, 
you know, if a lot of us saw a little baby bird with a broken 
wing flopping around, we wouldn't engage in this intellectual 
debate of whether it is hurting or not. There would be 
something in our humanity that would call upon us to respond. 
And to me that is the greatest challenge we face here.
    I know that for a lot of people on this side of the pro-
abortion perspective that this whole discussion of pain for the 
unborn child is a delicate, uncomfortable one because it flies 
in the face of the position that they hold. And I understand 
the discomfort with that. But if all we really cared about was 
just being comfortable about the situation, we wouldn't be 
having this debate at all.
    I am reminded of a situation that occurred when Dr. Abu 
Hyatt, Manhattan abortionist, performed a late-term abortion, 
and in the midst of it he had to suspend it and sent the mother 
home when she was still in a quasi-stupor, and the baby was 
born. But the baby was born without the child's arm. And at 
some point, the child must have asked that mother--the child 
lived and grew up, and the mother had to face a question from 
the child at some point, where is my arm?
    And I think sometimes we overlook the fact that when we 
help mothers understand the reality here, we save them great 
pain in the long run many times, because I think that there are 
a lot of things that time tempers, that we know that we maybe 
had done something that we didn't want to. But to see a mother 
learn that her child felt pain in this circumstance has got to 
be an inconsolable situation, and my greatest fear--we have had 
people say, well, Congress shouldn't be involved here, they 
shouldn't be playing doctor, shouldn't be playing medicine. 
There was a time when medicine wouldn't have been involved in 
this discussion and a time when Congress wouldn't have to be 
involved in this kind of situation.
    Sometimes the obvious things we can see with our own eyes. 
Sometimes the clarity that a 10-year-old possesses escapes 
those of us that are erudite in the great policymakers of this 
country.
    There is nothing that frightens me more for our humanity 
than somehow many could go to the end of it and looking back 
and realizing that our contribution to it was being willing to 
stand by and watch it desecrated before our very eyes.
    So, Mr. Chairman, I really have a hard time adding much 
more to that, other than to suggest that we need to back up 
here a little bit before the last vestige of our humanity is 
distinguished and just look at where we really are, because if 
there is anything that is true about this life, it is that we 
are all mortal. And at some point, we have to ask ourselves 
what we have done for those around us.
    I thank the panel, and I thank the Chairman for indulging 
me and just kind of, just a concern that I have about where 
this debate really is.
    Thank you, Mr. Chairman.
    Mr. Chabot. Thank you very much.
    The gentleman from Virginia is recognized for 5 minutes.
    Mr. Scott. Thank you.
    We have heard from two witnesses; Dr. Anand and Dr. Caplan 
have raised questions whether a script is the most effective 
way to communicate, or whether a--just a description taken into 
consideration, everything, all of the factors involved.
    Professor Collett, from your clinical, medical background, 
can you explain, can you tell us whether you think the script 
developed by Congress is more effective than an explanation 
from a medical background, getting guidance from the medical 
organizations?
    Ms. Collett. I would challenge the characterization of Dr. 
Caplan of the bill. To begin with, if you look at section 
II(a)2, it's quite clear that after----
    Mr. Nadler. Where are you?
    Ms. Collett. I am sorry, I have an e-mail printed out, 
Congressman Nadler.
    Mr. Scott. Page 11, line 24.
    Ms. Collett. Thank you, Congressman Scott. It's quite clear 
that after a presentation of the statement, it is required that 
the physician, if that is the person who is providing this 
statement, it can also be an agent of the physician, which, in 
fact, it appears from the practice of most clinics as recorded 
by Guttmacher Institute and in the various surveys they do, 
after making this statement required under clause 1, the 
abortion provider may provide the woman involved with his or 
her best medical judgment on the risks of administering such 
anesthesia or analgesic if any and the costs associated 
therewith. Because we have at least four States in the Union 
that do not require abortions to be done by physicians. I think 
the script in fact is a very important fitting. For example----
    Mr. Scott. Just from your clinical background, you think 
the script is an effective way to communicate with the patient?
    Ms. Collett. I believe in this particular subspecialty, Mr. 
Scott, because we have non-physicians engaging in the practice 
of abortion, a script is an important protection.
    Mr. Scott. Dr. Wright, do you think a script is an 
effective way to communicate with patients?
    Dr. Wright. Well, I think it is certainly a tool, 
especially when we are in an area where information has not 
been given. We the people look to the Government to protect us 
and to stand up on our behalf. If women have not been given 
this information or have not been given it in a way that they 
can understand, a script at least makes sure that the same 
information is given to every patient.
    Mr. Scott. Well, let me ask another question. Based on 
medical consensus, should anesthesia be administered or not, 
and at what gestational age?
    Dr. Wright. Based on----
    Mr. Scott. Based on medical consensus. I mean, we are up 
here as politicians. We are not just receiving evidence. Is 
there medical consensus as to whether anesthesia should be 
administered or not?
    Dr. Wright. All right. Let's start with the baby at 23 
weeks, it pops out today and is on the outside. From then on in 
development, there is consensus. We provide anesthesia, period. 
No debate, no if, ands or buts.
    Mr. Scott. Okay.
    Dr. Wright. For the baby younger than that, if it is on the 
inside, if it is fetal surgery, there are two anesthetics 
planned, one for the mom and one for the baby, because if you 
don't protect that baby from that stress and that pain, that 
baby will not survive, not only that procedure, but thrive 
inside.
    Mr. Scott. Well, is there a clear consensus?
    Dr. Wright. Sure.
    Mr. Scott. Does everybody agree with that? There's a clear 
consensus that, at 23 weeks, fetal anesthesia ought to be 
administered?
    No, there is not. Dr. Caplan.
    Mr. Caplan. After reading the literature, no.
    Mr. Scott. There is not a consensus, no.
    Is there a consensus, Dr. Anand?
    Dr. Anand. There is a consensus. All the fetal surgical 
procedures that are done today at 20 weeks or later require 
anesthetic.
    Mr. Scott. We are talking about abortions.
    Dr. Anand. Forgive me. I thought Dr. Wright had mentioned, 
given two examples, one for fetal surgery and the one for 
preterm neonatal surgery.
    Dr. Wright. Mr. Scott, there's not a consensus about giving 
anesthesia for abortion. That is why we are here, because no 
one wants to recognize that a baby undergoing an abortion feels 
pain.
    Mr. Scott. So your testimony is that there is no consensus 
in the medical community as to what to do? I think Dr. Caplan 
has pointed out that, depending on the condition of the patient 
and various other risk factors, it may be a good thing to do; 
it may not.
    Dr. Wright. I would say to you, the medical community swims 
in two different ponds on this issue. There are those of us who 
practice fetal anesthesia, neonatal anesthesia. And there are 
abortionists. There is very little, if any, overlap. So to 
expect consensus out of those two camps is an irrational 
statement.
    Mr. Chabot. The gentleman's time has expired.
    I would just note, there is not much consensus relative to 
whether or not we ought to allow abortion in the country or not 
either, so----
    Mr. Scott. I think, Mr. Chairman, with all due respect, 
here we have a bill that will prescribe a message to a patient. 
Presumably the message is going to suggest some action, and 
there's no consensus as to what the patient ought to do with 
the information? Should they have fetal anesthesia or not?
    Mr. Chabot. I think the argument is that they should be 
provided the information. They can then do with that 
information what they deem appropriate.
    Mr. Scott. Well, it's----
    Dr. Wright. May I add one more comment. Congress did make 
some decisions about informed consent. The lawyer can answer it 
better than me, but it's around health care privacy and 
protection. Congress came up with that language. We the doctors 
didn't.
    You prescribed it for us, and we give it to every patient 
the same way. So this is not the only time that informed 
consent has ever been prescribed by Congress.
    Ms. Collett. What we were talking about prior to the 
hearing is the Patient Self-Determination Act, which is key to 
the Federal Medicare and Medicaid funds, which is not 
individual physicians.
    Mr. Nadler. But that, if I may, that refers to legal rights 
not to medical status;correct? In other words----
    Ms. Collett. I understand.
    Mr. Nadler. --the script that Congress provides, correct me 
if I am wrong there, says, this is your legal right; this is 
what the law says.Is that correct?
    Ms. Collett. Actually, at the time it was passed, 
Congressman, there were several States that didn't have the 
documents that Congress wanted them to have.
    Mr. Nadler. But as far as the legal system, not with the 
medical status; is that correct?
    Mr. Scott. Well, if the gentleman would yield--or medical 
procedure.
    Ms. Collett. It is about withdrawing or continuing life-
sustaining care. So that distinction, I would argue, 
Congressman Scott, having been a lawyer that was in practice at 
the time it came down and advising a hospital, having to draft 
some documents for those hospitals, I think it affected the 
medical practice of my clients at that point in time. There 
were, in fact, scripts that we had to comply with. But I think 
more the concern was how we responded to it.
    Mr. Scott. Mr. Chairman, could I ask unanimous consent for 
an additional minute?
    Mr. Chabot. Without objection.
    Mr. Nadler. Would the gentleman yield for Dr. Caplan to 
answer the question. He is obviously chomping at the bit.
    Mr. Scott. Yes. Let me ask a question, then he can give the 
answer as part of the answer. The script includes statements 
like, the Congress of the United States has determined that, at 
this stage of development, an unborn child has physical 
structures necessary and whatnot. Is there any value to what 
Congress thinks about the issue? Wouldn't the patient be more 
interested in what the American Medical Association thinks 
about the issue?
    Mr. Caplan. Well, I would answer that and say the 
following: I was getting agitated because I actually was in 
front of Senator Danforth for the Patient Self-Determination 
Act when it was legislated, as a witness, thereby dating myself 
as being more ancient than anybody ever should be. But at the 
time, there were recommendations about what people needed to 
know to control their care in terms of the legal rights.
    But that is not the same as giving a script about what must 
be told to a person in terms of informed consent in their 
clinical care. So to tie back to your question, what I do 
believe--and I do respect Mr. Franks and Mr. Chabot's points 
about what people need to know in talking about respect for 
life--is if you want to educate physicians or nonphysicians to 
really do an educational job, to do what informed consent 
requires, telling them to read a script is not the vehicle. 
They won't understand it, some of them, the people reading it, 
so to speak. They are not up on all the literature. They won't 
even have all the evidence we have had in the room today. You 
have got to have this done as education. You have got to have 
it done as part of training. You have to put it in the 
residency programs. You want the professional societies to 
adopt it, and you want the Federal Government to encourage the 
proliferation of this information as it does in many areas, 
whether it is--I won't go into them--but it often encourages 
whether it is protection against getting the flu or whatever 
that these messages go out into the health professions so that 
people can talk to their providers.
    Last point, not every case is the same. The script is not 
reflective of that fact. You couldn't write it that way. When 
you have a baby born without a brain and it is an anencephalic 
baby, whether you are going to say it can feel pain or not and 
someone is getting an abortion for that reason is not the same 
as someone coming in for a different reason. What I worry about 
with the script is not that you can't answer questions 
afterwards; is that the script as it is written now and 
Congress is going to produce it is not going to be effective 
and not the way that we want information to come out between 
doctor and patient or health care provider and patient.
    Mr. Chabot. The gentleman's time has expired.
    Did any of the other witnesses want to address or answer 
the question? If not, okay.
    I want to thank the panel for their testimony this 
afternoon. This is obviously a controversial issue. Anything 
that touches on abortion always is. But you have helped shed 
light on this, and it's, I think, been very helpful.
    If there's no further business to come before the 
Committee, we are adjourned. Thank you.


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Appendix to the Prepared Statement of Teresa S. Collett, Professor of 
Law, University of St. Thomas School of Law: Fetal Pain Legislation: Is 
          it Viable? Pepperdine Law Review. Vol. 30:161, 2003




 Appendix to the Prepared Statement of Teresa S. Collett, Professor of 
  Law, University of St. Thomas School of Law: The Science, Law, and 
 Politics of Fetal Pain Legislation. Harvard Law Review. Vol. 115:2010 
                                  2002




      Prepared Statement of the American College of Obstetricians 
                           and Gynecologists

    The American College of Obstetricians and Gynecologists (ACOG) 
represents 49,000 physicians and partners in women's health, who care 
for and treat women of all ages. As physicians dedicated to improving 
women's health care, ACOG opposes legislation that is not based on good 
science, legislates how physicians should care for their patients, and 
penalizes physicians for legal, medically-sound patient care.
    As a result, ACOG strongly opposes HR 356, the ``Unborn Child Pain 
Awareness Act of 2005.'' This legislation would require doctors to read 
a government-mandated script informing the patient that the fetus might 
feel pain, offer or provide the patient anesthesia for the fetus, or 
give the patient a government prepared brochure on fetal pain. It would 
also impose civil sanctions and medical license revocations on a 
physician for failure to read such a script.

                               FETAL PAIN

    ACOG, in consultation with physicians who are experts in fetal 
anesthesia and fetal surgery, knows of no legitimate scientific data or 
information that supports the statement that a fetus experiences pain 
at 20 weeks gestation. We do not know when, or if, fetuses begin 
feeling pain since the physical structures needed to feel pain form and 
are put into use gradually as fetuses develop.
    We know that the cerebellum attains its final configuration in the 
seventh month and that myelinization (or covering) of the spinal cord 
and the brain begins between the 20th and 40th weeks of pregnancy. 
These, as well as other neurological developments, including 
neurotransmitted hormones, would have to be in place for the fetus to 
perceive pain. Our knowledge is limited to animal studies that show 
that these hormones are developed only in the last third of gestation.
    Balancing maternal and fetal risks may be different based on 
individual circumstances or indications for the procedure, but maternal 
safety must be considered when administering anesthesia to a pregnant 
woman. The higher dose or amount of anesthesia given to women who are 
undergoing fetal surgery puts the mother at greater risk. Furthermore, 
at this time, there is no way to measure the dosage of anesthetic 
agents delivered to the fetus and no way to measure the effects of 
these agents on the fetus.

             GOVERNMENT INTERFERENCE WITH INFORMED CONSENT

    HR 356 interferes with the doctrine of informed consent and 
deprives patients of their physicians' best judgments. Under threat of 
civil penalties or license revocation, this legislation would compel 
physicians to give women information about fetal pain that is contrary 
to medical knowledge.
    Requiring a physician to read a government-mandated script that is 
not supported by scientific information violates the established 
doctrine of medical informed consent. Good medical practice demands 
that a patient and physician decide together on treatment based on the 
specific needs of each patient. Physicians have a legal, professional, 
and ethical obligation to share with their patients all relevant 
information about available health care options and to respect their 
patients' decisions. State laws, as well as established medical 
standards, ensure that women are provided with accurate and unbiased 
information about their health care options and give their informed 
consent for any procedure, including abortion.
    ACOG believes the government should not put obstacles, including 
inaccurate medical information, between a woman and her legal health 
care options.

                  CIVIL PENALTIES AND LOSS OF LICENSE

    ACOG strongly opposes civil and loss of license penalties, against 
doctors who provide legal care based on the needs of their patients. 
Obstetrician-gynecologists cannot offer adequate or complete care when 
they fear they will be penalized for making decisions in the best 
interest of their patients.

                                SUMMARY

    ACOG strongly opposes HR 356, the ``Unborn Child Pain Awareness Act 
of 2005.'' HR 356 requires medically inaccurate informed consent 
mandates, is not based on legitimate scientific information, imposes 
penalties for doctors providing patient care, and does not adequately 
consider maternal safety when requiring the administration of 
anesthesia to women. This legislation disregards the central tenets of 
medical ethics, which could lead to serious health repercussions for 
our patients.

                                 
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