Pain-Capable Abortion Bans

More than three decades ago, I went to visit a friend who was hospitalized at NIH in Bethesda, Maryland. On the way from the parking lot to her room, I encountered a group of animal rights activists protesting the use of animals in medical research. To this day I vividly remember the chant they repeated again and again: “A cat is a rat is a dog is a boy.” Operating on a hunch, I couldn’t resist asking about their viewpoint on abortion. As I suspected, the group was decidedly pro-choice, connecting their acceptance of abortion with the problem of over-population. Even at the time, I thought it strange that someone could be against animal research for medical benefit but for abortion. Thirty years later, I still think it strange.

A few weeks ago South Carolina Governor Nikki Haley signed a law that bans abortion at or after 20 weeks. Undoubtedly, the pro-choice camp will be up in arms against the law. Arkansas and other states have passed similar “pain-capable” abortion laws that remain stymied in judicial review.

Two reasons often set forth for prohibiting abortions at and after 20-weeks are the fetus’ resemblance to an infant and the fetus’ capacity to feel pain. I wish to make one point regarding the latter criterion. Specifically, I contend that one cannot be for animal rights and, at the same time, be against laws that prohibit abortions at the at the development stage of sentience.

For animal rights proponents, the launching point of their argument for animal equality and their opposition to “speciesism” is that non-human animals are capable of feeling pain like human animals, and thus, should not be discriminated against but rather accorded equal consideration. By their logic, animal rights—including the right not to be killed—flow out of the animals’ capacity to feel pain. This was the point of the animal rights protesters at NIH decades ago.

If one accepts the logic of animal rights, then shouldn’t he or she be against abortion at the point at which fetuses are capable of feeling pain? Even if one has a low view of the value of the embryonic/fetal human being in the womb, doesn’t he or she have to admit that at a certain stage in fetal development they are at minimum “pain-capable animals”? If so, don’t they have the right not to be killed?

Critiquing this key argument of the animal rights movement is not my present aim. Rather, I’m simply pointing out that it is logically inconsistent to be for animal rights and against laws that limit abortions at the point fetuses can feel pain. Thus, animal rights proponents should not be against “pain-capable” abortion laws. They cannot accord rights to pain-capable non-human animals and deny them to pain-capable human fetuses.

Of course, from the pro-life perspective, pain capability is an arbitrary threshold, since this perspective bases its opposition to abortion on the inherent value of the embryonic/fetal human being from the earliest moments of existence. Obviously, pro-choice proponents do not accept this high view of the value of embryonic/fetal human beings. However, I’ve run across a great number of people like the protestors at NIH who see themselves as promoters of both “abortion rights” and “animal rights.” It would be progress if they could come to see that prohibiting abortions at the point of pain capability is reasonable and is consistent with the logic they use to justify animal rights. For the pro-life camp, this would represent only a minimal victory. However, at the present time when some seek to defend “post-birth abortion” (i.e. infanticide), it would at least be a step in the right direction.

Additional Thoughts on Sentience

Last week, I offered my opinion—a less-than-complementary one—on the decision of the American Animal Hospital Association (AAHA) to make a position statement that includes “the concept of animals as sentient beings.” My critique was based on the difficulty of assessing degrees of sentience in a very wide range of animals, making the broadness of the statement look like shabby ethical work, and its implicit agenda, avoiding direct mention of animal rights while using a term that is loaded with portent for the issuance of rights, perhaps indecipherable from the rights of human beings (a committed “anti-speciesist” like Peter Singer could be practically giddy!). Now to unpack that a bit…

There is no doubt that non-human animals display varying levels of sentience (just as human beings can, incidentally—try offering a no-anesthesia circumcision to anyone but a newborn baby boy). They have varying capacities for emotions and pain perception, based on varying levels of mental sophistication. One comment on my earlier post correctly stated that sentience is a capacity, and while capacity is a very poor way to measure the moral worth of humans, it may be one of many very fine ways to assess the moral status of non-human animals. But the “bright line” of separation must remain.

Even in the absence of a theological doctrine of humanity, the idea that human beings are moral agents and that a non-human animal, even if appropriately granted a substantial degree of moral status, is incapable of being a moral agent is significant. This is where a designation of “sentience” suffers from being both too broad and too narrow at the same time. In the first sense, it offers some implausibility. What about the practical implications of AAHA’s statement? Is animal slaughter humane enough, or should animals that we use for food be anesthetized beforehand? If I meet a grizzly on the path, should I have every expectation that his sentience means that we can work out a mutually-beneficial arrangement for our flourishing as we go our separate ways? In the second sense, that of narrowness, the intrinsic value of my humanity may, ironically, be diminished. Is my compassion for animals more a reflection of their power, their rights if you will, or a mark of my humanity? The California Veterinary Medical Association welfare guidelines issued in 2004 identified animals as “sentient beings with wants and needs.” Okay, fine. So how do we avoid a stalemate with humans who seem to have “wants and needs,” too, and often can make more articulate cases for them that even a well-socialized terrier? We are focusing on moral objects and not moral agents here, and not much can get done that way.

I would have been far more supportive of a position statement that was anthropological in nature, even as it included language that addressed the varying levels of sentience that animals may have. It is a practical reality that humane treatment for animals will arise from moral agents, humans alone, who realize that their Creator has made them to be wise stewards over creation, especially the vulnerable of their own species and the animals who share the Earth and much of the architecture of nervous systems with them.

Here’s what AAHA should have written, in my (clearly) less-than-humble-opinion:

“Because human beings have the unique role of moral agency and the awesome responsibility to ensure the welfare and flourishing of their own species, as well as the entirety of nature and the animals that we keep as companions and livestock and that inhabit the Earth we must wisely steward, we should take seriously the ability of animals to experience pain and other criteria associated with sentience in its various degrees among the wide range of neurological and mental sophistication that animals represent. It is this unique role that necessitates that humans should provide for physical and behavioral welfare to animals to the greatest degree possible, while minimizing pain and distress.”


While issues of animal rights and animal liberation have been hotly-debated in the public square and in philosophic discussions, national veterinary associations have walked on eggshells for decades, wanting to speak on issues of animal welfare, where consensus is far easier. Until recently. The American Animal Hospital Association (AAHA), which is a group that represents 16,000 veterinarians as members and more than 5,500 veterinary practices, stepped into the fray this past fall with a position statement that stakes out a strong statement on the moral status of animals. It marks the first time that a national veterinary medical group has done so. But it does not use the words “rights” or even “moral status,” but, rather, addresses “sentience.” In the words of AAHA, animals are “feeling, sensing beings capable of sentiency.”

This statement comes from an organization for which I generally have great respect, one that focuses on small animal (generally pet) practice, where I do my work, and which has logistical and philosophical differences with large animal, particularly food animal, practice. They know how all of veterinary medicine is the same, and in what ways its various forms must necessarily differ. They have advocated for a higher standard of care for small animal practices and have genuinely helped advance the profession’s view of pain management and compassionate handling. But I am not alone in my bafflement of their decision to use a word pregnant with meaning, like “sentiency,” in the association’s official statement.

Specifically, the statement says, “The American Animal Hospital Association supports the concept of animals as sentient beings. Sentiency is the ability to feel, perceive or be conscious or to have subjective experiences. Biological science as well as common sense supports the fact that the animals that share our lives are feeling, sensing beings that deserve thoughtful high-quality care. The care that is offered should provide for the animal’s physical and behavioral welfare and strive to minimize pain, distress and suffering for the animal.”

This definition of sentiency is fairly standard (it’s what Wikipedia opens with, for example). But it is confusing on a few levels as well. First, as others have noted, how do we define “animals”? The Executive Director says it should be interpreted as referring to companion animals, like dogs and cats, since that is the focus of AAHA’s efforts. But it doesn’t say that, and even “companion animals” include creatures that range from geckos and box turtles to mice and scorpions. This is sloppy work for a position statement that seeks to be both ground-breaking and (not too) comprehensive.

Second, sentiency is loaded with ethical and theological baggage. I can argue with some success that my patients seem to display wide-ranging emotions, have an ability to feel pain based on physiologic measures that are comparable to human beings, and certainly have memories of past events that contribute to the behaviors they display at a given moment. I cannot tell you that they have a will, or a sense of purpose, or actually whether they can suffer in the full metaphysical or spiritual sense that we know human beings can suffer. I am not willing to deny that it is possible for higher animals to suffer or have more complex emotional and mental capabilities than most think, rather than our own interpretation of their actions and responses that may be little more than anthropomorphism (which may itself reflect a more sophisticated spin on a good Disney film), but I will not claim to know it. I have never felt an ounce of desire to hunt, probably not so much because of the potential fear and pain for the hunted animal, though I don’t like that, but rather because of what it will do to my own soul. Call it my own version of “liberal guilt,” it has less to do with the animals than me, and explains why I can eat meat with little sadness even though it was once a living, breathing animal. For better (or likely worse) sentience may be translated “of human caliber.” And since we really only know our own kind, we must interpolate this to “animals.”

Finally, the clever use of “sentience” manages, at face value, to avoid the philosophical minefield of animal rights. But this is a Trojan horse. The great view of Peter’s Singer’s utilitarianism, the moral status of animals is equivalent to (or supersedes) humans based on ability to feel pain, is often distinguished from the more rights-based approach of someone like Tom Regan, where animals are “subjects-of-a-life,” biographical creatures. Sentience bridges the gap (artificial though it may be) and lends the credibility of organized veterinary medicine to both arguments. Sentience, as it will be popularly interpreted, will necessitate rights. I will gladly debate the moral status of animals, and work to see it addressed in my own work with state and national organizations. I am disappointed that the AAHA has taken the road they have, because I think it reflects both slipshod ethics and an emotional, sentimental path to what should have been an opportunity for an effective unity of philosophy and science.