By Robert Kinscherff, Senior Fellow in Law & Applied Neuroscience

I recently attended a presentation on Fetal Pain: An Update on the Science and Legal Implications, jointly sponsored by the Center for Law, Brain and Behavior (Massachusetts General Hospital) and the Petrie-Flom Center (Harvard Law School). Presenters were Amanda Pustilnik, JD (University of Maryland School of Law) and Maureen Strafford, MD (Tufts University School of Medicine). Video of the event is available on the website, and I encourage everyone to watch the full discussion for themselves.

Doctor Strafford delivered a masterful overview of the trajectory of scientific perspective and research about children and pain. Over the course of her career, the medical perspective has transformed from “children do not feel pain” to “children do not remember pain” to inquiry into “when and how children feel pain.” Strafford described the medical complexities of understanding the physical and subjective aspects of pain as well as the impossibility of confidently “pinpointing” the exact point in fetal development when a neonate experiences pain.

Professor Pustilnik gave an equally compelling review of law and legal language regarding abortion, particularly law that specifically references fetal pain as a reason for limiting abortion.   This served to frame a conversation about pain and suffering in the law and the ways in which law reflects normative considerations and provides rhetoric (viewed respectively by partisans as “compelling” or “inflammatory”) to political discourse. In this case, discourse about fetal pain both attracts attention and is intended to facilitate empathy for the neonate.

Taken together, Pustilnik and Strafford made a powerful case that the current discourse about fetal pain reflects a strategic communication strategy intended to advance the cause of abortion opponents. Continue reading »

Click to enlarge event poster.

On Wednesday, February 10, Amanda Pustilnik, JD and Maureen Strafford MD will discuss fetal pain, including advances in neuroscience and treatment and their implications for the law.

The event will be held at 12:00 pm on Wednesday, February 10, in Wasserstein Hall, Milstein East C (2036) at Harvard Law School (1585 Massachusetts Avenue, Cambridge, MA).

This event is free and open to the public. Lunch will be served.

Continue reading »

The International Association for the Study of Pain (IASP) has convened a pioneering working group to develop international standards for the legal uses of brain imaging, a group that will include CLBB Faculty Member and former Fellow in Law & Applied Neuroscience, Amanda Pustilnik. This will be the first body to set international standards for legal and policy uses of brain imaging, advancing law, policy, and human outcomes in the pain area. Additionally, it will provide a model for how to set standards in all areas where law may turn to brain imaging relating to the brain’s production of sensation, affect, and behavior. This initiative was in part prompted by the ideas raised at CLBB’s recent conference,  “Visible Solutions: How Neuroimaging Helps Law Re-envision Pain”.

Congratulations to Amanda Pustilnik for being part of this trailblazing effort!

By Igor Elman and David Borsook | Neuron | January 6, 2016

Abstract: 

While chronic pain is considered by some to be a CNS disease, little is understood about underlying neurobiological mechanisms. Addiction models have heuristic value in this regard, because both pain and addictive disorders are characterized by impaired hedonic capacity, compulsive drug seeking, and high stress. In drug addiction such symptomatology has been attributed to reward deficiency, impaired inhibitory control, incentive sensitization, aberrant learning, and anti-reward allostatic neuroadaptations. Here we propose that similar neuroadaptations exist in chronic pain patients.

Read the rest of the paper here.

By Amanda Pustilnik | Alabama Law Review | 2015

Abstract:

What would the law do differently if it could see into the black box of the mind? One of the most valuable things it might do is reform the ways it deals with pain. Pain is ubiquitous in law, from tort to torture, from ERISA to expert evidence. Yet legal doctrines grapple with pain poorly, embodying concepts that are generations out of date and that cast suspicion on pain sufferers as having a problem that is “all in their heads.”

Now, brain-imaging technologies are allowing scientists to see the brain in pain—and to reconceive of many types of pain as neurodegenerative diseases. Brain imaging proves that the problem is in sufferers’ heads: Long-term pain shrinks the brain and changes the way it functions.

This new science has immediate practical and theoretical applications for the law. This Article first proposes reforms to disability law doctrines and their judicial interpretation. It then proposes ways in which pain neuroimaging ought to be handled as a matter of expert evidence in state, federal, and administrative proceedings. Drawing on work in evidence theory, it considers black letter evidence law as well as normative practices that shape how decision makers weigh evidence and credibility. It also offers limits on the use of brain images.

In opening a window into how the brain generates subjective experiences, neuroimaging should lead to doctrinal and practice-based revisions that increase law’s accuracy and fairness. So doing, brain imaging should change the law’s mind about the nature of pain and may require the law to rethink its dualism between body and mind.

Continue reading the paper here.