Anna Higgins is Director, Center for Human Dignity, and Dr. David Prentice is Senior Fellow and Director, Life Sciences at Family Research Council. This article appeared in The Washington Times on October 6, 2013.

Some have called into question the legitimacy of laws directed at preventing abortions on preborn children capable of feeling pain. They suggest that preborn children cannot experience pain prior to 24 weeks of gestation, and thus, banning abortion prior to 24 weeks has no justification in terms of avoiding of fetal pain. Many think that the brain cortex, which forms around 23 weeks, is necessary for the unborn to experience pain. The evidence suggests otherwise.

Dr. Maureen L. Condic, associate professor of neurobiology and adjunct professor of pediatrics at the University of Utah School of Medicine, recently presented comprehensive congressional testimony on fetal pain, drawing from myriad of cutting-edge scientific studies. She noted that "those who insist [that the cortex is required for pain perception] are denying the ample modern scientific evidence from credible, professional neuroscientists that contradicts this conclusion."

Dr. Condic pointed out the fact that children without higher cortex structures experience pain and exhibit other conscious behaviors like recognizing people, having adverse reactions to pain, and preferring certain kinds of music. Thus, "long-range connections that develop in the cortex only after 22 weeks (and are absent in these patients) are not obligatory for a psychological perception of pain." Animal studies validate these observations and show that feelings can be found at "all levels of the nervous system," so pain perception does not require cortical circuitry. She also remarked that lower brain centers, especially the thalamus, are now known to be responsible for pain perception, and that these neural circuits "are established between 12 and 18 weeks" after conception.

Dr. Scott Adzick, a fetal surgeon, stated in a Sept. 16 article in The New York Times that reasons other than the prevention of fetal pain exist for the administration of anesthesia during fetal surgery. Such reasons include the prevention of maternal pain, immobilization of the fetus, and a block on the fetus's hormonal stress response. Interestingly, in that same article, Dr. Adzick concedes that he does not know whether without such measures the child would feel pain. Dr. Condic addressed the "hormonal stress response," noting that the increase seen in stress hormones in response to painful stimuli can be eliminated by anesthesia, which indicates fetal pain is indeed present.

Dr. Colleen A. Malloy, board certified in neonatology and an assistant professor in the Feinberg School of Medicine, testified before Congress in 2012 that the "standard of care in [the] field recognizes neonatal pain as an important entity to be acknowledged, measured and treated." She testified that doctors in the neonatal intensive-care unit regularly witness fetal pain response firsthand. The response to intravenous placement and other procedures on babies at 20 weeks post-fertilization and later "is similar to those seen in older infants and children." She also notes, "At 23 weeks in utero, a fetus will respond to pain (intrahepatic needling, for example) with the same pain behaviors as older babies: screwing up the eyes, opening the mouth, clenching hands, withdrawal of limbs. In addition, stress hormones rise substantially with painful blood puncture, beginning at 18 weeks gestation."

The bottom line, as highlighted by Dr. Condic, is that it is impossible "to know what any other human individual experiences at any stage of life." Such lack of finality presents a moral dilemma that we must address. In considering pain in others, we must, as Dr. Condic suggests, "choose, based on what we know and what we observe, whether we will give that individual the benefit of the doubt, out of compassion, empathy and justice, or whether we will ignore the pain they experience simply because the precise psychological quality of their pain cannot be known with certainty." The best ethical resolution to such a situation is to apply the precautionary principle, which is inexorably connected to the principle of "do no harm." Even if one is not convinced that fetal pain exists at 20 weeks gestation, we should err on the side of protecting these preborn children.

A description of the process used to abort a child in the second trimester clearly demonstrates that the potential pain experienced by the preborn child would be excruciating. Dr. Anthony Levatino, who has performed more than 100 second trimester suction dilation-and-evacuation procedures up to 24 weeks, recently explained the procedure in detail in his testimony before Congress. He described the suction used to drain the amniotic fluid and the clamp used to grasp and crush the fetus into pieces that can be easily extracted. The in-depth description is nothing short of nauseating. The New York Times article claims that very few abortions are performed after 21 weeks of gestation. This point only strengthens the argument that pain-capable abortion bans are needed. The bans are justifiable even if they spare just one child from such a horrific, painful death.

Government has a substantial interest in protecting life from the outset of pregnancy and, therefore, must consider protection of preborn children. As Dr. Condic concluded, just like us, preborn children "deserve the benefit of the doubt regarding their experience of pain and protection from cruelty under the law."