The Mobilization of Fetal Pain in Abortion Legislation

Scientific controversies around fetal pain have been mobilized in legislative proposals in the United States during the past decade, with the aim of restricting abortion access. In these bills, fetal pain enacts a defining feature of personhood, granting the fetus with rights of protection. Together with other medical interventions such as the early detection of fetal heartbeats, these bills pave the way for public deliberation on the nature of the fetus in democratic societies. The House of Representatives has passed the Pain Capable Unborn Child Protection Act three times during the decade since its first introduction in 2013, but it has so far failed to pass the Senate. The bill stipulates that it is illegal to perform abortions after the gestational mark of 20 weeks has been passed, and that fetuses can experience pain after 20 weeks. By undertaking an in-depth reading of the legislative proposals that have been introduced at the federal level in the US Congress, this paper investigates how fetal pain is articulated in these legislative proposals since 2013 and asks how these bills reflect broader moral and regulatory concerns around the indeterminacy of the fetus. The analysis highlights how actors mobilize and coalesce partially irreconcilable scientific information into the arguments portrayed in the bills, speaking from and to wider audiences. Political outsiders take part in the bill as both 1) the source of practical and moral concerns that anchors the issue of the nature of the fetus and 2) the public in which the final message of the bill finds its cultural resonance. As such, techno-scientific developments on fetal capabilities afford a transformation of fetuses into citizens with equal rights to the people that bear them. The paper contributes to the growing scholarship on public involvement in legislative practices around matters of scientific concern employed in attempts to limit reproductive rights.