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Utah Gov. Gary Herbert just signed a law that will require doctors to ignore best medical practice and give some women unnecessary anesthesia for abortions. This is the first time any state has tried this, even during a veritable boom of creative anti-abortion lawmaking at the state level.
The idea behind SB 234, or the Protecting Unborn Children Amendments, is to prevent a fetus from feeling pain during an abortion at 20 weeks or more. It requires a doctor performing an abortion at this stage to "administer an anesthetic or analgesic to eliminate or alleviate organic pain to the unborn child."
The problem? Thorough reviews of medical evidence reject the idea that fetuses can actually feel pain at 20 weeks. They don't fully develop the proper neurological structures to feel pain until later, around 29 to 30 weeks in the third trimester.
The bigger problem? There's really no such thing as "fetal anesthesia" in standard medical practice. And the law doesn't specify how doctors are supposed to make it happen.
"I've emailed the governor and asked him to tell me what to do, because I don't know what to do," Dr. Leah Torres, an OB-GYN and abortion provider in Utah, told Vox. "It's like saying, 'Take someone's widget out using standard medical practice.' I don't know what that means."
Dr. Sean Esplin of Intermountain Health Care told the Associated Press that to "administer an anesthetic or analgesic" to the fetus, you'd have to go through the woman first using general anesthesia — which renders her unconscious and probably requires a breathing tube — or a heavy dose of narcotics.
Both options are much riskier than the IV drugs women would normally get during a second-trimester abortion, Torres said, and neither is standard medical practice for that procedure.
And even if they were standard practice, Torres said, passing a law mandating them would be a bad idea. "Cardiologists would not stand for a law that said, 'You must give someone an aspirin if they have a heart attack,' even though that in fact is a standard of care," Torres said.
What's more, Esplin told the AP, the law could apply to women in circumstances other than a later abortion. It could force women with the serious condition of preeclampsia, who have to either go into early labor or risk dying, to go under general anesthesia first and take on even greater risk.
Elizabeth Nash, a policy analyst at the Guttmacher Institute, told CNN that the law could amount to a "de facto" ban on abortions at 20 weeks or later, because no doctor would give a patient anesthesia who doesn't need it.
And banning abortion after 20 weeks is exactly what Utah lawmakers were trying to do in the first place, the Salt Lake Tribune reports. The bill's sponsor, Republican Sen. Curt Bramble, initially proposed a total ban on abortion after 20 weeks but changed it after he was told the ban would be unconstitutional.
Indeed, 20-week abortion bans are considered unconstitutional under Roe v. Wade because they ban abortion before a fetus is viable, and several courts have blocked similar laws as a result. But they're not blocked everywhere, partly because advocates haven't bothered to challenge them in states that fall under the jurisdiction of more conservative appeals courts.
It's been quite a week or so for anti-abortion lawmaking. Indiana just became the first state to require all fetal tissue to be cremated or buried, no matter how far along the pregnancy is and no matter if it's an abortion or a miscarriage. And Florida just passed a huge anti-abortion bill defunding Planned Parenthood.
All of these laws will probably face court challenges sooner rather than later.
