The new abortion law in Utah, SB0234, makes no sense and that is bothering me.
Okay, I know
most all abortion laws make no sense medically (some can’t even calculate gestational age correctly) and they are designed to restrict care, but this one has an added issue.
The bill has been labelled by many as the anesthesia bill because it requires that providers give anesthesia for abortions after 20 weeks. This is based on the incorrect belief that a fetus can feel pain before 24 weeks. This is obviously an attempt to raise the cost of the procedure and restrict it to operating rooms, adding even more barriers. It seems that most people reporting on it assume this means a general anesthetic (completely asleep), but it doesn’t.
The law says “anesthetic or analgesic” with no specifications and I don’t know anyone who does 20 week or later procedures without some kind of anesthesia or analgesia (pain relief) for the pregnant woman and almost all these medications cross the placenta.
Here’s a screen shot of the actual clause:
Anesthesia and analgesia are very broad terms. A Tylenol is analgesia and as acetaminophen crosses the placenta that would count as fetal analgesia. Most providers give some kind of intravenous sedation for second trimester procedures, so that pretty much covers anesthesia and analgesia. If it the law said only eliminate pain then heavy sedation or a general anesthetic would be required, but alleviate is improve. People get light sedation as anesthesia all the time for minor procedures. A maternal dose of 1,000 mg of Tylenol alleviates pain.
There is also the part about “by the particular method.” Labor isn’t believed to be painful to the delivering fetus, so this law wouldn’t even apply to second trimester procedures carried out by induction of labor (never mind that a 22 week fetus can’t feel pain). This method is often a choice for women with fetal anomalies who wish to have an autopsy or when there is a termination because of ruptured membranes and an intrauterine infection.
To write the law this way means that the legislators have either no understanding of medicine (highly likely) or something more sinister, that it is purposely vague. If they are just putting their ignorance on public display then this law won’t change anything, but what if a prosecutor interprets “anesthetic or analgesic” as general anesthesia and decides to let a jury decide? Prosecuting pregnant women is not an unknown in the United States. Purvi Patel is in jail for a premature delivery because a district attorney though she might have tried to induce an abortion. There was no evidence, but make no mistake about it – these laws exist to scare and punish women. They also exist to scare providers. How much do you think it would cost a doctor to defend herself in front of a Utah jury why her lawyers try to make the court understand that intravenous sedation with fentanyl counts as anesthesia or that a 22 week induction of labor for infection isn’t possibly painful for a fetus?
This latter point might be especially hard as the law now says there is evidence of fetal pain at 20 weeks and calls this “truthful” and “nonmisleading.” It is the same as legislating that night is day. It is Orwellian.
Going to court to defend an intravenous medication as adequate anesthesia for a 20 week termination now requires undoing a lie about fetal pain that is law. The jury would have to understand the medicine about thalamocortical connections as well as the mechanisms of anesthesia and analgesia and the transplacental passage of medications. We all know in court with these cases it’s about emotions, not facts.
As long as there are district attorneys wanting to make a name for themselves these laws will get tested in courts in ways the people who wrote them could never have dreamed.
And that’s dangerous.