- Published: November 14, 2012
It is possible that neuroscience could have an even greater effect on the legal system than just dealing with criminal law. In fact, some suggest that it may contribute evidence to cases dealing with our constitutional rights. For instance, a number of states have recently passed abortion laws that specifically rely on scientific claims that fetuses are capable of feeling pain. Some people are going as far as supposing that neuroscience could challenge Roe v. Wade with concrete scientific evidence that fetuses can feel pain. In an article for the New York Times’ Opinionator blog, Johns Hopkins Humanities Professor William Egginton cautions against relying too much on science, specifically neuroscience, to determine what it means to be a “person” according to the Fourteenth Amendment.
Already, we know that juries and judges can be unduly swayed by neuroscientific evidence in the courtroom, suggesting that neuroscience is perceived as being naturally endowed with special credibility. Similarly, in these state abortion laws, there is a serious risk of giving more weight to findings from neuroscience than they deserve. Although it does seem very unlikely that fetuses would be capable of feeling pain any time before the third trimester, research findings about fetal pain detection have varied significantly. State’s laws like Arizona’s that prohibit abortions after 20 weeks of pregnancy may not yet be based in scientifically proven “facts”. Moreover, Egginton’s biggest concern is that this type of evidence is being used at the expense of women’s rights to choice. In fact, Egginton was recently approached by doctor-lawyer Rick Hearn to testify as an expert witness in an appellate case that challenges the government’s use of scientific evidence to “contract” women’s rights. He points out a number of problems with using neuroscience to prohibit abortions on the basis of fetus’ abilities to feel pain. First, it forces us to agree to allowing pure science decide what determines “personhood”. The second problem is that people don’t fully understand what this evidence from neuroscience truly tells us. Even if fetuses do begin to feel pain starting in the third trimester, most statutes include an implicit requirement that these fetuses also experience pain – in order words, that they have consciousness. However, consciousness is a sticky concept that, at least so far, cannot be identified in fetuses by neuroscience. Our nervous system’s response to nociceptive stimuli is not necessarily the same as being conscious of that pain – neuroscience has not even come to a consensus about what consciousness is.
While neuroscience holds enormous potential for revolutionizing many aspects of the legal system, such as transforming our rehabilitative strategies and our concepts of criminal culpability, this does not mean that neuroscience can, or should, be used in ways that are not well enough understood to redefine our constitutional rights. Rather than jumping on the first finding from neuroscience for fetal pain detection as reason for making strict abortion laws, people need a better understanding of the reliability of these findings, what they really mean, and their greater societal implications.
Cohen, I. Glenn. "The flawed basis behind fetal-pain abortion laws." Opinions. The Washington Post, 01 2012 Aug. Web. 14 Nov. 2012.
Egginton, William. "Can Neuroscience Challenge Roe V. Wade?." Opinionator. New York Times, 28 2012 Oct. Web. 14 Nov. 2012.
Lee SJ, Ralston H, Drey EA, Partridge J, Rosen MA. Fetal Pain: A Systematic Multidisciplinary Review of the Evidence. JAMA. 2005;294(8):947-954. doi:10.1001.