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Primary nationwide abortion statistics for the United States are available from two sources-privately from the Guttmacher Institute (AGI) and publicly from the Centers for Disease Control (CDC). Guttmacher's numbers, published every three years, come from direct surveys of all known and suspected abortion providers in the United States. The CDC numbers, published annually, are derived from actual counts of every abortion reported to state health departments. Unfortunately, California, Maryland, and New Hampshire do not publicly report abortion totals. As such, Guttmacher's abortion numbers are more complete, but they are approximations. Since only 58% of queried providers responded to Guttmacher's latest survey, abortion totals were estimated for the remaining 42%. These estimates utilized in-state health department data and "service patterns of other abortion-providing facilities in the community." Whereas the CDC numbers may be too low, Guttmacher's numbers may be too high. The information on this page has been gleaned from both sources to provide an overview of the frequency and demography of abortion. Additional secondary statistics have been taken from the National Abortion Federation's (NAF) 2009 teaching text on abortion, Management of Unintended and Abnormal Pregnancy: Comprehensive Abortion Care.

ANNUAL ABORTION STATISTICS

Based on the latest state-level data available, approximately 882,000 abortions took place in the United States in 2017-down from approximately 885,000 abortions in 2016 and 913,000 abortions in 2015.

According to the Guttmacher Institute, an estimated 926,240 abortions took place in the United States in 2014-down from 1.06 million in 2011, 1.21 million abortions in 2008, 1.2 million in 2005, 1.29 million in 2002, 1.31 million in 2000 and 1.36 million in 1996. From 1973 through 2011, nearly 53 million legal abortions occurred in the U.S (AGI).

In 2014, approximately 19% of U.S. pregnancies (excluding spontaneous miscarriages) ended in abortion.¹

According to the United Nations' 2013 report, only nine countries in the world have a higher reported abortion rate than the United States. They are: Bulgaria, Cuba, Estonia, Georgia, Kazakhstan, Romania, Russia, Sweden, and Ukraine.*
*Though the UN lists China's official abortion rate at 19.2, China's actual abortion rate is likely much higher. According to China's 2010 census, there were approximately 310 million women of reproductive age in the country. An estimated 13-23 million abortions happen annually in China, resulting in an adjusted abortion rate of 41.9-74.2. The abortion rate is the number of abortions per 1,000 women aged 15-44.

In 2014, the highest percentage of pregnancies were aborted in the District of Columbia (38%), New York (33%), and New Jersey (30%). The lowest percentage of pregnancies were aborted in Utah (5%), South Dakota (4%), and Wyoming (<2%). (AGI abortion data + CDC birth data).

In 2015, approximately 35% of all pregnancies in New York City (excluding spontaneous miscarriages) ended in abortion (CDC).

The annual number of legal induced abortions in the United States doubled between 1973 and 1979, and peaked in 1990. There was a slow but steady decline through the 1990's. Overall, the number of annual abortions decreased by 6% between 2000 and 2009, with temporary spikes in 2002 and 2006 (CDC).

From 2014 to 2015, the number, rate² and ratio³ of reported abortions all decreased by 2% (CDC).

WHO HAS ABORTIONS?

In 2015, unmarried women accounted for 86% of all abortions (CDC).

Among married women, 4% of pregnancies currently end in abortion. Among unmarried women, 27% of pregnancies end in abortion (CDC).

Women in their 20s accounted for the majority of abortions in 2015 and had the highest abortion rates (CDC).

Adolescents under 15 years obtained .03% of all 2015 abortions; women aged 15-19 years accounted for less than 10% (CDC).

Women living with a partner to whom they are not married account for 25% of abortions but only about 10% of women in the population (NAF).

In 2015, women who had not aborted in the past accounted for 56% of all abortions; women with one or two prior abortions accounted for 35%, and women with three or more prior abortions accounted for 8% (CDC).

Among women who obtained abortions in 2015, 41% had no prior live births; 45% had one or two prior live births, and 14% had three or more prior live births (CDC).

Among white women, 10% of pregnancies currenlty end in abortion. Among black women, 28% of pregnancies end in abortion (CDC).

Black women were more than 3.5 times more likely to have an abortion in 2015 than white women (CDC).

The abortion rate of non-metropolitan women is about half that of women who live in metropolitan counties (NAF).

The abortion rate of women with Medicaid coverage is three times as high as that of other women (NAF).

In 2014, 30% of aborting women identified themselves as Protestant and 24% identified themselves as Catholic (AGI).

WHY DO ABORTIONS OCCUR?

In 2004, the Guttmacher Institute anonymously surveyed 1,209 post-abortive women from nine different abortion clinics across the country. Of the women surveyed, 957 provided a main reason for having an abortion. This table lists each reason and the percentage of respondents who chose it.

The state of Florida records a reason for every abortion that occurs within its borders each year. In 2015, there were 71,740 abortions in Florida. This table lists each reason and the percentage of abortions that occurred because of it.

.001%

The pregnancy resulted from an incestuous relationship

.288%

The woman's physical health was threatened by the pregnancy

.294%

The woman's psychological health was threatened by the pregnancy

92.330%

No reason (elective)

WHEN DO ABORTIONS OCCUR?

89% of all abortions happen during the first trimester, prior to the 13th week of gestation (AGI/CDC).

In 2015, 8% of all abortions occurred between 14-20 weeks' gestation; 1.3% occurred ≥21 weeks' gestation (CDC).

Percentage of 2015 Reported Abortions by Weeks of Gestation* (CDC):
*Gestational weeks are measured from the first day of the woman's last menstruation and not from the day of conception. Though it does not provide an accurate fetal age (which is roughly 2 weeks less than the gestational age), it is the simplest way for an OB/GYN to age a pregnancy since the day of conception is often not known. Hence, if an abortion occurs at 8 weeks gestation, it is actually aborting a 6 week embryo. The images on our Prenatal Development and Abortion Pictures pages are more precisely captioned with fetal ages in accordance with standard teaching texts on prenatal development.

HOW DOES ABORTION TAKE PLACE?

WHO IS DOING THE ABORTIONS?

The number of abortion providers declined by 3% between 2011 and 2014-from 1,720 to 1,671 (AGI).

In 2011, 42% of providers offered very early abortions (during the first four weeks' gestation) and 95% offered abortion at eight weeks. Sixty-four percent of providers offer at least some second-trimester abortion services (13 weeks or later), and 20% offer abortion after 20 weeks. Eleven percent of all abortion providers offered abortions past 24 weeks (AGI).

Only 5% of U.S. abortions occur in hospitals; 2% occur in physician's offices. The rest occur in freestanding abortion clinics-without any established doctor-patient relationship (NAF).

ABORTION FATALITY

In 2014, six women died as a result of complications from induced abortion. Between 1973-2014, 437 women died due to abortion complications (CDC).

The number of deaths attributable to legal induced abortion was highest before the 1980s (CDC).

In 1972 (the year before abortion was federally legalized), a total of 24 women died from causes known to be associated with legal abortions, and 39 died as a result of known illegal abortions (CDC).

THE COST OF ABORTION

MEDICAL ABORTION

In 2011, 59% of abortion providers, or 1,023 facilities, provided one or more types of medical abortions. At least 17% of abortion providers offer only medication abortion services (AGI).

Medication abortion accounted for 31% of all nonhospital abortions in 2014 (AGI).

ABORTION AND CONTRACEPTION

Induced abortions usually result from unintended pregnancies, which often occur despite the use of contraception (CDC).

In 2008, 51% of women having abortions used a contraceptive method during the month they became pregnant. (AGI).

9 in 10 women at risk of unintended pregnancy are using a contraceptive method (AGI).

Oral contraceptives, the most widely used reversible method of contraception, carry failure rates of 6 to 8% in actual practice (NAF).

ABORTION AND MINORS

ABORTION AND PUBLIC FUNDS

The U.S. Congress has barred the use of federal Medicaid funds to pay for abortions, except when the woman's life would be endangered by a full-term pregnancy or in cases of rape or incest (AGI).

17 states (AK, AZ, CA, CT, HI, IL, MA, MD, MN, MT, NJ, NM, NY, OR, VT, WA and WV) use public funds to pay for abortions for some poor women. About 14% of all abortions in the United States are paid for with public funds-virtually all from the state (AGI).

In 2014, 88,466 abortions in California were paid for with public funds. Public funds paid for 45,722 abortions in New York (AGI).

Footnotes

1. This percentage was arrived at by comparing the number of 2014 births reported by the CDC (3,984,924) and the number of abortions reported by AGI.

2. The abortion rate is the number of abortions per 1,000 women aged 15-44.

3. The abortion ratio is the number of abortions per 1,000 live births.

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Primary nationwide abortion statistics for the United States are available from two sources-privately from the Guttmacher Institute (AGI) and publicly from the Centers for Disease Control (CDC). Guttmacher's numbers, published every three years, come from direct surveys of all known and suspected abortion providers in the United States.

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During his first term on the Supreme Court, Justice Neil Gorsuch has in many ways shown himself to be a kindred spirit to the late Justice Antonin Scalia. Justice Gorsuch-like his predecessor-is an originalist, which means that he seeks to ascertain the original meaning of the constitutional text and to apply it faithfully. But one wonders: will Justice Gorsuch distinguish himself by being a more consistent originalist with respect to the constitutional status of abortion?

The late Justice Scalia wrote in his Planned Parenthood v. Casey opinion that "the Constitution says absolutely nothing about" abortion. In his view, the Fourteenth Amendment's guarantees of due process and equal protection for all "persons" do not encompass prenatal life. Instead, the question of abortion should be decided state-by-state through the "political process" and "democratic choice." In a 2008 interview, Justice Scalia opined:

There are anti-abortion people who think that the constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that's still in the womb the way you treat other human beings. I think that's wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons.

Does the Constitution really only protect "walking-around persons" under an originalist interpretation? Or can one make a compelling originalist rejoinder by examining the original meaning of the term "person" as used in the Fourteenth Amendment? I attempt to do just that in my article, " Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?" published in the Harvard Journal of Law and Public Policy.

The structure of the argument is simple: The Fourteenth Amendment's use of the word "person" guarantees due process and equal protection to all members of the human species. The preborn are members of the human species from the moment of fertilization. Therefore, the Fourteenth Amendment protects the preborn. If one concedes the minor premise (that preborn humans are biological members of the human species), all that must be demonstrated is that the term "person," in its original public meaning at the time of the Fourteenth Amendment's adoption, applied to all members of the human species.

I draw on three strands of evidence to support that conclusion. First, dictionaries of common and legal usage at the time of the Fourteenth Amendment's adoption defined the terms "person" and "human being" interchangeably. Thus, the original public meaning of the term "person" included every member of the human race. Second, centuries of common-law precedent and state practice leading up to the Fourteenth Amendment's adoption in 1868 indicate that the unborn were considered legal persons. Third, the authors of the Fourteenth Amendment expected it to protect every human being-especially the weakest and most marginalized. This "original expected application" is indicative of the original public meaning and demonstrates that informed citizens believed that the text of the Fourteenth Amendment applied to every human without exception.
Starting with the Text
Dictionaries of common and legal usage at the time of the Fourteenth Amendment's adoption treated the word "person" as interchangeable with "human being" or "man." For example, the 1864 edition of Noah Webster's Dictionary of the English Language defined the term "person" as relating "especially [to] a living human being; a man, woman, or child." The entry for human includes those belonging to "the race of man." No dictionary of the era referenced birth or the status of being born in its definition of "person," "man," or "human being."

In legal usage, the term "person" had expansive scope. Alexander Burrill's New Law Dictionary and Glossary defined "person" as "A human being, considered as the subject of rights, as distinguished from a thing." This is consistent with Blackstone, for whom there was no distinction between biological human life and legal personhood. He considered every human being to be a "natural person." Blackstone declared in his authoritative Commentaries that "life is . . . a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb." This mention of the preborn child's stirring was intended to protect prenatal life as soon as it could be discerned, not to exclude human life from protection prior to that point. Thus, the principle can be derived from Blackstone and others that if human life could be shown to exist, legal personhood existed also.
Common Law Precedent and State Practice
The English common law tradition-which the United States inherited and developed after its independence-consistently treated abortion as the wrongful killing of a human being. Abortion was prohibited as soon as life in the womb could be detected. Prior to the advent of modern medical science, unborn life was detected at "quickening," that is, at the first perceived fetal movement. This proved a useful evidentiary tool for determining whether the crime of abortion had occurred. Legal giants such as Lord Coke and Blackstone formalized the legal principles protecting prenatal life, which were eventually passed on to the American colonies and adopted into their state common law systems. When embryologists discovered that each human individual begins its life cycle at fertilization in the 1830s, the states rapidly discarded the obsolete quickening standard in favor of the new, medically accurate fertilization standard.

By the time the Fourteenth Amendment was ratified in 1868, the states widely recognized unborn children as persons. Twenty-three states and six territories referred to the fetus as a "child" in their anti-abortion statutes. Twenty-eight labeled abortion as an "offense[] against the person" or a functionally equivalent classification. Most strikingly, the same Ohio legislature that ratified the Fourteenth Amendment in January 1867 passed legislation criminalizing abortion at all stages in April. The committee that reviewed the bill, which was composed of several Senators who had voted for ratification of the amendment, declared in their report that abortion "at any stage of existence" is "child-murder." Given the historical context, it is clear that the public meaning of the term "person" in 1868 included the preborn.
The Amendment's Anticipated Application
The framers of the amendment themselves certainly thought their amendment required due process and equal protection of every human being. While the intentions of the drafters of the Fourteenth Amendment do not directly govern the meaning of the text, it is worth wondering whether the radically inclusive amendment can reasonably be interpreted to exclude a subset of individuals who were considered human beings at the time it was written.

The primary framer of the Fourteenth Amendment, Representative John Bingham, believed the Amendment prevented states from refusing "any of the rights which pertain . . . to common humanity." Senator Jacob Howard, who sponsored the Amendment in the Senate, emphasized that the Amendment guaranteed even the lowest and "most despised" members of the human race equal protection of the laws. During congressional debates, Representative James Brown asked rhetorically: "Does the term 'person' carry with it anything further than a simple allusion to the existence of the individual?"

As Justice Hugo Black later put it, "the history of the [Fourteenth] Amendment proves that the people were told that its purpose was to protect weak and helpless human beings." The drafters of the Amendment carefully crafted the text to include all human beings within its jurisdictional reach, regardless of their origin or circumstance. Their widely shared belief sheds light on the Amendment's public meaning at the time of its adoption. The Fourteenth Amendment was meant to be a new birth of freedom for all human beings.
A Clear Case for Originalists
In his Roe v. Wade majority opinion, Justice Harry Blackmun acknowledged that if "personhood is established," the case for a constitutional right to abortion "collapses, for the fetus' right to life would then be guaranteed specifically by the [Fourteenth] Amendment." Under an originalist interpretation of the Constitution, the edifice supporting Roe and its progeny crumbles.

Given the original public meaning of the term "person," the contemporaneous anti-abortion statutes purposed to protect prenatal life, and the public explanations given by the framers of the Fourteenth Amendment as to its scope of meaning, protections should be extended to prenatal life on originalist grounds. If constitutional protections for the unborn were acknowledged, a state could not refuse to prosecute the intentional killing of the unborn while continuing to prosecute the killings of other classes of persons without violating the Equal Protection Clause.
A Path Forward
In light of the evidence, the Supreme Court should reverse course on abortion. But only two current Supreme Court Justices are identifiably originalist in their interpretive method: Justices Thomas and Gorsuch. Without a majority on the Court who might be persuaded by such arguments, what is the path forward for extending constitutional protections to the unborn?

Each branch and level of government has a role to play. Congress should act immediately under Section 5 of the Fourteenth Amendment to "enforce . . . by appropriate legislation" the Constitution's protections for unborn persons, such as through the Life at Conception Act. The executive should assert his departmental authority to interpret and uphold the Constitution-rejecting the false doctrine of judicial supremacy and fulfilling his constitutional duty to "take Care that the Laws be faithfully executed." Finally, the states retain the primary duty to protect the inalienable rights of all human beings within their jurisdictions, the foremost of which is the right to life. States have a responsibility to exercise their police powers (their powers to promote public health, safety, and morals) to prohibit abortion.

Until the Supreme Court, the people, or their elected representatives undo the caste system of separate and unequal treatment for unborn persons, there can be no true equal protection under the law. The legal regime that discriminates against preborn human beings should be abolished on originalist grounds, restoring the harmony between science and law in a manner consistent with the Constitution.

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The Constitution Already Prohibits Abortion: An Originalist Case for Prenatal Personhood

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Justice Antonin Scalia, an originalist, famously held that the Constitution neither permits nor prohibits abortion. On the contrary, unborn babies are "persons" within the original public meaning of the Fourteenth Amendment, and they are consequently owed due process and equal protection on constitu

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Is it true that the only arguments against abortion are strictly based on religious ethical standards? Or can a case be made against abortion that does not depend on a belief in God? The pro-life argument is clear for Christians, as we believe that God is the Author of Life and that human beings have dignity and worth because we are made in God's image. But for Christians to be persuasive in a secular world, we must also be equipped with the secular arguments against abortion.

This brochure will equip you with pro-life arguments based in science, the law, and women's rights that will empower you to make a persuasive case to any audience that unborn children have the right to life.

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The Best Pro-Life Arguments for Secular Audiences

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Is it true that the only arguments against abortion are strictly based on religious ethical standards? Or can a case be made against abortion that does not depend on a belief in God? The pro-life argument is clear for Christians, as we believe that God is the Author of Life and that human beings have dignity and worth because we are made in God's image.

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Credit: Fotos593 | Shutterstock.com

Utah recently passed a law that requires doctors to give anesthesia to a fetus prior to performing an abortion that occurs at 20 weeks of gestation or later.

The law assumes that a fetus may be able to feel pain at that stage in development; however, doctors groups and other critics of the law argue that a fetus cannot feel pain at 20 weeks gestational age.

Indeed, the American College of Obstetricians and Gynecologists (ACOG) said it considers the case to be closed as to whether a fetus can feel pain at that stage in development. [ 6 Myths About Miscarriage]

"The science shows that based on gestational age, the fetus is not capable of feeling pain until the third trimester," said Kate Connors, a spokesperson for ACOG. The third trimester begins at about 27 weeks of pregnancy.

To find out more, Live Science dug into the research and spoke with a leading expert on fetal pain. Here's a look at what we found.

One reason the question of fetal pain is so controversial is because pain is always a subjective experience, said Dr. Anne Davis, an OB/GYN and the consulting medical director for Physicians for Reproductive Health. Davis is an abortion provider.

Unlike with blood pressure or body temperature, for example, there's no definitive way to measure pain, Davis said. People do have ways of communicating how much pain they're feeling; for example, doctors often ask people to rate their pain on a scale of 1 to 10. But the experience of pain is fundamentally subjective, Davis said. In other words, what might be very painful to one person may cause very little pain to someone else.

Still, even though doctors can't objectively measure pain, research has revealed much about how pain is experienced in the body and, more importantly, in the brain.

"Pain occurs in [the] brain," Davis said. When a person is injured - say, you stub your toe, for example - a signal travels from the foot up through the nerves in the leg to the spinal cord, and then from spinal cord up to the brain, Davis said. Once that signal gets into the brain, the information is transmitted through a complex web of neurons to an area of the brain called the cortex, she said.

It's in this sophisticated part of the brain that a person actually perceives the feeling of pain, Davis said.

"We know that there are a lot of steps in between the thing that could cause pain and the actual experience of pain," Davis said. For the system to work - whether in an adult or a fetus - all of the pathways of the nerves need to be connected and functioning, she said.

"What we can say about the fetal nervous system is that based on the best science we have" on the neurons that carry pain signals is that the "system isn't developed until the third trimester of pregnancy," Davis told Live Science.

Scientists' knowledge of the fetal nervous system was summed up in a 2005 review in the journal JAMA. The authors of that review outlined in detail the evidence on how this system develops, based on a number of previous studies on the anatomy of the fetus at various stages of development.

Davis, who was not involved with that review, noted that though it was published in 2005, the research is still valid, because the scientific community's understanding of fetal development is "pretty much stable." Indeed, since the publication of the review, "no research has contradicted its findings," said a recent statement from ACOG.

In the review, the researchers highlighted several key points in fetal development that are required in order for a fetus to perceive pain. One is that the receptors in the skin that sense an injury must be developed. Research has shown that this happens between 7.5 and 15 weeks of pregnancy, depending on the location of the receptors on the body, according to the review. For example, receptors in the skin around the mouth develop at around 7.5 weeks, whereas receptors in the skin on the abdomen develop at around 15 weeks, according to the review.

Second, the neurons in the spinal cord that transmit that signal up to the brain must be developed. Researchers who looked at fetal tissues reported that this happens at around 19 weeks, the review said.

Third, the neurons that extend from the spinal cord into the brain need to reach all the way to the area of the brain where pain is perceived. This does not occur until between 23 and 24 weeks, according to the review.

Moreover, the nerves' existence isn't enough to produce the experience of pain, the authors wrote in their review. Rather, "These anatomical structures must also be functional," the authors wrote. It's not until around 30 weeks that there is evidence of brain activity that suggests the fetus is "awake."

Davis noted that while these time frames aren't exact - some fetuses may develop a little earlier, and some fetuses may develop a little later - "there isn't any science to suggest that those pathways [for pain] are complete around the 20th week" of pregnancy.

"It's a complicated development process, and it goes in stages," Davis said.

According to a statement from ACOG, a fetus's brain and nervous system "do not have the capacity to process, recognize or feel pain during the second trimester."

Indeed, it's important to remember that early on in pregnancy, the fetus isn't just a very small version of what it looks like later in pregnancy, Davis said. Rather, things are changing and organs are forming, she said. There are number of fetal conditions that can't be diagnosed until later in pregnancy, because the development simply hasn't happened yet, she said.

One argument that is sometimes used to suggest a fetus can experience pain before the third trimester is that a fetus can have a withdrawal reflex, or the ability to move away from something when touched.

But performing a reflex action and perceiving pain are two different things, Davis said. Consider, for example, when a doctor tests your reflexes by hitting your knee with a rubber hammer. Your foot will kick out, regardless of whether you experience pain or not.

"Many reflexes occur at the level of the spinal cord," and don't involve the brain at all, Davis said. But the brain is essential for perceiving pain, she said. [ 5 Painful Facts you Need to Know]

Another argument is that a fetus in the second trimester can display certain stress responses, such as increased levels of stress hormones, including cortisol and endorphins. However, the authors of the JAMA review noted that these hormones aren't specific to pain (for example, other stressful conditions may affect their levels). In addition, the hormones are not regulated by the part of the brain associated with consciousness, the authors wrote.

Utah's law requiring anesthetizing a fetus prior to an abortion also brings up important technical questions: How should doctors perform such a procedure? Is there an added risk to the woman? For example, although it's been shown that painkilling drugs cross the placenta and reach the fetal bloodstream, doctors don't know how much of the drug they would have to give the woman in order to achieve the desired level in the fetus, and if this amount is safe for the woman, the JAMA authors wrote.

There's no protocol for how to do this, Davis said, and experts in the field of maternal medicine aren't sure how to follow this law. Doctors are able to immobilize a fetus to perform certain in-utero surgeries, but this is different than blocking pain in the fetus, according to the JAMA review.

Dr. Leah Torres, an OB/GYN in Salt Lake City, also said that it's not medically possible for doctors to follow this law.

"There is no medical practice that involves administering [pain relief] to a fetus," she told The Salt Lake City Tribune earlier this month.

Yet another issue is that pain is a part of many medical procedures. And so, fundamentally, the law begs another important question: Why does the potential existence of pain mean that a procedure should be avoided? Davis said.

Follow Sara G. Miller on Twitter @saragmiller. Follow Live Science @livescience, Facebook & Google+. Originally published on Live Science.

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Do Fetuses Feel Pain? What the Science Says

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Utah recently passed a law that requires doctors to give anesthesia to a fetus prior to performing an abortion that occurs at 20 weeks of gestation or later. The law assumes that a fetus may be able to feel pain at that stage in development; however, doctors groups and other critics of the law argue that a fetus cannot feel pain at 20 weeks gestational age.

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True personal stories of men and women who have had, or been affected by abortion.

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True personal stories of men and women who have had, or been affected by abortion.

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The right to an abortion is based upon inalienable rights to liberty and "the pursuit of happiness" found in the N.D. Constitution, Judge Wickham Corwin wrote in a ruling striking down a 2011 law banning a certain type of abortion procedure. Corwin failed to mention, though, the inalienable right to life found in the same constitution.

"Although initial decisions were based in part on an inferred right to privacy, it is now clear the federal constitutional protection of reproductive rights is founded on the due process clause of the fourteenth amendment, and the controlling word is 'liberty,'" Corwin wrote. "Liberty is also one of the freedoms protected by the Constitution of North Dakota. ... our state constitution has always recognized liberty as one of the foremost of the 'inalienable rights' that must be zealously protected. The same is true of the pursuit of happiness, a right nowhere mentioned in the federal constitution."

Corwin did not indicate when a person first obtains the right to freedom and to pursue happiness, but his ruling suggests he would not extend those rights to pre-born people.

In an email to The Christian Post, Mary Spaulding Balch, J.D., who handles state legislation for the National Right to Life Committee, pointed out that the same sentence in the N.D. Constitution that mentions the inalienable rights to liberty and the pursuit of happiness also mentions the right to life, but Corwin ignored that part.

The N.D. Constitution says, "all individuals ... have certain inalienable rights, among which are those of enjoying and defending life and liberty ... ."

"The pursuit of happiness, after all, is useless to someone who is denied the right to life," Balch wrote.

The 2011 law would have banned the use of a particular chemical used in some abortions. This year, North Dakota passed another law banning most abortions after the fetus is six weeks old. The constitutionality of that law was not addressed in Corwin's ruling.

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Abortion Rights Based Upon 'Pursuit of Happiness,' Judge Says

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The right to an abortion is based upon inalienable rights to liberty and "the pursuit of happiness" found in the N.D. Constitution, Judge Wickham Corwin wrote in a ruling striking down a 2011 law banning a certain type of abortion procedure. Corwin failed to mention, though, the inalienable right to life found in the same constitution.

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Controversy

Short abstract

Legal or clinical mandates to prevent pain in fetuses are based on limited evidence and may put women seeking abortion at unnecessary risk. This paper outlines neurodevelopment in fetuses in the context of pain experience

The US federal government is considering legislation that will require doctors to inform women seeking abortions that "there is substantial evidence that the process of being killed in an abortion will cause the unborn child pain." w1 The bill mandates that a fetus of more than 22 weeks' gestational age should receive pain reducing drugs before an abortion. Doctors who fail to comply can be fined $100 000 (£57 700; €84 000) and can lose their licence and Medicaid funding.

In the United Kingdom provocative images of the fetus generated by four dimensional ultrasonography have fuelled a reassessment of fetal capabilities along with suggestions that the fetus can respond both emotionally and cognitively. Subsequent political and media discussion in the United Kingdom has debated changing abortion laws and procedures to mitigate against fetal pain. w2 w3

This paper discusses whether there is sufficient evidence to support a concept of fetal pain through an examination of fetal neurobiology and the relation to experience. Important neurobiological developments occur at 7, 18, and 26 weeks' gestation and are the proposed periods for when a fetus can feel pain. Although the developmental changes during these periods are remarkable they do not tell us whether the fetus can experience pain. The subjective experience of pain cannot be inferred from anatomical developments because these developments do not account for subjectivity and the conscious contents of pain.

The neurobiology of the fetus: anatomical pathways

Notwithstanding limitations, it is useful to view the pain system as an alarm system. Viewed in this way, a noxious stimulus is an event that activates free nerve endings in the skin, similar to pushing an alarm button. The electric cable from the button to the alarm is similar to the connection between the nerve endings and the brain. The brain is the alarm that rings out pain. Whether the fetus can respond to a noxious stimulus with pain can thus be decided in part by determining when the alarm system is completely developed.

Free nerve endings, the "alarm buttons," begin to develop at about seven weeks' gestation; projections from the spinal cord, the major "cable" to the brain, can reach the thalamus (the lower alarm) at seven weeks' gestation. An intact spinothalamic projection might be viewed as the minimal necessary anatomical architecture to support pain processing, putting the lower limit for the experience of pain at seven weeks' gestation.

At this time, however, the nervous system has yet to fully mature. No laminar structure is evident in the thalamus or cortex, a defining feature of maturity. The external wall of the brain is about 1 mm thick and consists of an inner and outer layer with no cortical plate. The neuronal cell density of the outer layer is much higher than that of a newborn infant or adult and at seven weeks' gestation has yet to receive any thalamic projections. Without thalamic projections, these neuronal cells cannot process noxious information from the periphery.

The first projections from the thalamus to cortex (the higher alarm) appear at 12-16 weeks' gestation. By this stage the brain's outer layer has split into an outer cortical rim, with a subplate developing below. The thalamic projections that develop from 12-16 weeks penetrate the subplate. Within the subplate, cortical afferents establish prolonged synaptic contacts before entering the cortical plate. The subplate is a "waiting compartment," required for mature connections in the cortex. The major afferent fibres (thalamocortical, basal forebrain, and corticocortical) can wait in the subplate for several weeks, before they penetrate and form synapses within the cortical plate from 23-25 weeks' gestation. Subsequent dissolution of the subplate occurs through prolonged growth and maturation of associative connections in the human cerebral cortex.

Spinothalamic projections into the subplate may provide the minimal necessary anatomy for pain experience, but this view does not account for the transient nature of the subplate and its apparent role in the maturation of functional cortical connections. A lack of functional neuronal activity within the subplate calls into question the pain experience of a fetus before the penetration of spinothalamic fibres into the cortical plate.

Current theories of pain consider an intact cortical system to be both necessary and sufficient for pain experience. In support are functional imaging studies showing that activation within a network of cortical regions correlate with reported pain experience. Furthermore, cortical activation can generate the experience of pain even in the absence of actual noxious stimulation. These observations suggest thalamic projections into the cortical plate are the minimal necessary anatomy for pain experience. These projections are complete at 23 weeks' gestation. The period 23-25 weeks' gestation is also the time at which the peripheral free nerve endings and their projection sites within the spinal cord reach full maturity. By 26 weeks' gestation the characteristic layers of the thalamus and cortex are visible, with obvious similarities to the adult brain, and it has recently been shown that noxious stimulation can evoke haemodynamic changes in the somatosensory cortex of premature babies from a gestational age of 25 weeks. Although the system is clearly immature and much development is still to occur (fig 1), good evidence exists that the biological system necessary for pain is intact and functional from around 26 weeks' gestation.

Investigating fetal psychology

Without verbal reports and direct access to the mind of a fetus, inferences about what fetuses are able to experience depend on the interpretation of secondary evidence. As discussed, neuroanatomical pathways necessary for processing pain, similar to those observed in adults and older children, could be in place by 23 weeks' gestation. The stereotypical hormonal stress response of adults or older infants, of about 18 months onwards, reporting pain is observable in fetuses at 18 weeks' gestation. Behavioural reactions and brain haemodynamic responses to noxious stimuli, comparable to adults or older infants, occur by 26 weeks' gestation. These and other observations () are taken to suggest that the fetal mind can support an experience of pain from at least 26 weeks' gestation.

Inferences of fetal pain from such indirect evidence, however, present considerable difficulties. One is that many environmental factors inherent to the womb provide for a distinction between the environment of fetuses and that of neonates. The placenta provides a chemical environment to encourage sleep and to suppress higher cortical activation in the presence of intrusive external stimulation. The environment of the womb consists of warmth, buoyancy, and a cushion of fluid to prevent tactile stimulation. In contrast to this buffered environment, the intense tactile stimulation of birth and the subsequent separation of the neonate from the placenta, facilitate the rapid onset of behavioural activity and wakefulness in the newborn infant. Birth marks the transition from laying down brain tissue while in the womb to organising that tissue for the wider world outside the womb.

Another obstacle to equating fetal pain experience with that of adults or older children is the developmental process that begins after birth. Theories of development assume that the early human mind begins with minimal content and gradually evolves into the rich experience of older children and adults. Although the view of a neonate as a blank slate, or tabula rasa, is generally rejected, it is broadly accepted that psychological processes have content concerning people, objects, and symbols, which lay in the first instance outside the brain. w7-w9 If pain also depends on content derived from outside the brain, then fetal pain cannot be possible, regardless of neural development.

The content of pain

Few living creatures are unresponsive to a noxious stimulus (for example, a pinch or burning flame). Light a flame next to a fruit fly larva, for example, and it will bend and roll away. w10 These responses depend on specialised sensory neurones, similar to free nerve endings in humans, which preferentially respond to stimuli that can damage tissue. Although the larva clearly has a biological apparatus to detect and respond to dangerous stimuli, can it be said to feel pain?

If the larva feels pain, then it presumably has some conscious or mental representation of the pain. The pain must consist of such experienced concepts as the location, feel, and cognition associated with the pain. Without this content, there is the response to noxious events, otherwise known as nociception, but no pain. The larva thus cannot be said to have the capacity for pain: there is no evidence for the conceptual content that the experience of pain implies.

A proper understanding of pain must account for the conceptual content that constitutes the pain experience. The International Association for the Study of Pain defines pain as "an unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage." w11 By this definition pain is not merely the response to noxious stimuli or disease but is a conscious experience. The definition further states that "pain is always subjective. Each individual learns the application of the word through experiences related to injury in early life." w11 The limited neural system of fetuses cannot support such cognitive, affective, and evaluative experiences; and the limited opportunity for this content to have been introduced also means that it is not possible for a fetus to experience pain.

The developmental process

Without consciousness there can be nociception but there cannot be pain. Thus to understand how pain experience becomes possible it is necessary to understand the origin and developmental course of conscious experience. It is reasonable to assume that conscious function can only emerge if the necessary neural circuitry to carry out that function is fully developed and functional. w5

It is also necessary to assume that conscious function can only emerge if the proper psychological content and environment has been provided. Before infants can think about objects or events, or experience sensations and emotion, the contents of thought must have an independent existence in their mind. This is something that is achieved through continued brain development in conjunction with discoveries made in action and in patterns of mutual adjustment and interactions with a caregiver. The development of representational memory, which allows infants to respond and to learn from stored information rather than respond to material directly available, may be considered a building block of conscious development. Representational memory begins to emerge as the frontal cortex develops between two and four months of age, supported by developments in the hippocampus that facilitate the formation, storage, and retrieval of memories. w5 From this point tagging in memory is possible, or labelling as "something," all the objects, emotions, and sensations that appear or are felt. When a primary caregiver points to a spot on the body and asks "does that hurt?" he or she is providing content and enabling an internal discrimination and with it experience. This type of interaction provides content and symbols that allow infants to locate and anchor emotions and sensations. It is in this way that infants can arrive at a particular state of being within their own mind. Although pain experience is individual, it is created by a process that extends beyond the individual. w9

This is likely to strike anyone as strange because it is simply not how we intuitively believe pain to be. Because pain is so automatic and personal we perceive it to be natural and private. But because we are able to experience pain as such a personal event does not mean that we individually acquired the ability to experience pain in the first place. Nor does it mean that the psychological mechanisms by which we experience pain arose within our own brains by some individualistic process such as neuronal maturation. w9

This is not to deny that neonates and fetuses have the neural apparatus to discriminate information; clearly, fetuses and neonates do not respond to tactile stimuli in the same way as they do to auditory stimuli, for example. Indeed, this discriminatory processing is the raw material for a primary caregiver's assessments of his or her infant's need and for the interactions and behavioural adjustments that occur in the forthcoming months. Innate neural and behavioural discrimination are part of the material for developing experiential discrimination, but experiential discrimination is yet to develop and relies critically on interactions with a primary caregiver. For fetuses and newborn infants, these interactions have yet to occur.

By this line of reasoning fetuses cannot be held to experience pain. Not only has the biological development not yet occurred to support pain experience, but the environment after birth, so necessary to the development of pain experience, is also yet to occur.

Clinical and policy implications

Earlier beliefs by anaesthetists that newborns and neonates could not feel pain led to an under-utilisation of analgesics. w12-w14 Before controlled trials, w15 w16 however, there were justified concerns about intraoperative hypotension caused by the anaesthesia of infants, and about postanaesthesia apnoea and respiratory depression by narcotic analgesia. Sufficient evidence now shows that such risks during procedures on neonates and infants are outweighed by the clinical benefits, regardless of whether evidence supports or negates the concept of pain in neonates. Should anaesthetists return to a view that neonates cannot feel pain, the clinical benefits of anaesthetic intervention will remain. A lack of pain experience provides no ethical or practical reason to justify returning to a regimen of fewer anaesthetics or analgesic intervention.

As more centres begin to carry out open and closed fetal surgery, w17 enthusiasm for analgesia and anaesthesia in fetuses is likely to increase. It is tempting to assume that what benefits neonates will also benefit fetuses. However the greater immaturity of fetuses and their different hormonal and physical environment indicate that clinical trials should be carried out with fetal patients to show improved outcomes. Currently no defined evidence based fetal anaesthesia or analgesia protocol exits for these procedures.

The medical goals of survival and long term normal development of fetuses should not influence medical decisions when a woman seeks an abortion. Under these circumstances, the question of analgesia or anaesthesia in fetuses can be more directly tackled by examining the possibility of pain in fetuses and the consequences of any pain relief for fetuses on the health and wellbeing of the pregnant woman. The case against fetal pain, as documented here, indicates that a mandate to provide pain relief before abortion is not supported by what is known about the neurodevelopment of systems that support pain. Proposals to directly inject fetuses with fentanyl w18 or to provide pain relief through increased administration of fentanyl or diazepams to pregnant women, which increase risks to the women and costs to the health provider, undermine the interests of the women and are unnecessary for fetuses, who have not yet reached a developmental stage that would support the conscious experience of pain.
Summary points
The neuroanatomical system for pain can be considered complete by 26 weeks' gestation

A developed neuroanatomical system is necessary but not sufficient for pain experience

Pain experience requires development of the brain but also requires development of the mind to accommodate the subjectivity of pain

Development of the mind occurs outside the womb through the actions of the infant and mutual adjustment with primary caregivers

The absence of pain in the fetus does not resolve the morality of abortion but does argue against legal and clinical efforts to prevent such pain during an abortion

Conclusion

The neural circuitry for pain in fetuses is immature. More importantly, the developmental processes necessary for the mindful experience of pain are not yet developed. An absence of pain in the fetus does not resolve the question of whether abortion is morally acceptable or should be legal. Nevertheless, proposals to inform women seeking abortions of the potential for pain in fetuses are not supported by evidence. Legal or clinical mandates for interventions to prevent such pain are scientifically unsound and may expose women to inappropriate interventions, risks, and distress. Avoiding a discussion of fetal pain with women requesting abortions is not misguided paternalism but a sound policy based on good evidence that fetuses cannot experience pain.

Notes
References w1-w18 are on bmj.com
I thank Peter Gianaros for critiquing an earlier version of this manuscript, Ian Apperly for critical review comments and additions to figure 1, and Maria Fitzgerald for review of figure 1.

Contributors and sources: SWGD has studied and reported widely on pain and the difficulty of subjectivity. This article arose from several discussions on possible changes in abortion law to avoid pain in fetuses.

Funding: This author is supported by a grant from the Pittsburgh Foundation and the John F and Nancy A Emmerling Fund.

Competing interests: SWGD has served as an unpaid consultant for Planned Parenthood of Virginia, USA and Planned Parenthood of Wisconsin, USA, and for the Pro-Choice Forum, United Kingdom.

References

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Controversy Legal or clinical mandates to prevent pain in fetuses are based on limited evidence and may put women seeking abortion at unnecessary risk. This paper outlines neurodevelopment in fetuses in the context of pain experience The US federal government is considering legislation that will require doctors to inform women seeking abortions that "there is substantial evidence that the process of being killed in an abortion will cause the unborn child pain."