Bulletproof Abortion Ban?

Nebraska has a new law banning abortions performed after 20 weeks gestation, the point at which fetuses can first feel pain.

(photo: Shutterstock image)

OMAHA, Neb. — The rationale behind a new Nebraska abortion law is potentially precedent-setting, and pro-life leaders are already optimistic about its chances of holding up in any possible Supreme Court challenge.

Nebraska Gov. Dave Heineman signed two abortion-related bills into law April 13. One requires screening of women seeking abortions. The other bans most abortions after 20 weeks because they cause pain to fetuses.

What provoked the Abortion Pain Prevention Act’s introduction two months ago was the stated intention of Nebraska abortionist Leroy Carhart to step into the role of Dr. George Tiller, the late-term abortion specialist murdered last year, and serve the national market for late-term abortions from his clinic in Bellevue, Neb.

The Nebraska Legislature’s speaker, Mike Flood, got the ball rolling when he learned of Carhart’s plans, says Julie Schmit-Albin, executive director of Nebraska Right to Life. Flood approached Nebraska Right to Life looking for draft legislation.

The Nebraska Catholic Conference provided Flood support for the second bill, which requires physicians to screen women seeking an abortion to help avoid any post-abortion complications — mental or physical. Both bills passed by a 44-5 margin.

Fetal Pain at 20 Weeks

But it is the 20-week fetal-pain law that has broken new ground, and its drafters have done their best to prepare it for the expected challenge. That’s because a previous Nebraska effort to restrict abortion failed in the Supreme Court, partly, says Schmit-Albin, because the arguments and evidence presented in the Nebraska Legislature were deemed insufficient by the Supreme Court. “This time we made sure the legislative record was tight.”

This meant lining up compelling evidence and witnesses for legislative committee hearings: On top of nine peer-reviewed studies proving fetal pain at 20 weeks, four medical specialists testified.

Among them was Dr. Tom Grissom, a clinical instructor in the pain medicine center at the Washington School of Medicine, who told legislators “specialized nerve endings involved in pain transmission are seen as early as seven weeks and are found throughout all organs by 20 weeks gestation. The midbrain, brainstem and cortex are all present in the fetus by 20 weeks gestation. This means that all the elements for the perception of pain are present by 20 weeks gestation.”

Grissom later told the Register that even at 20 weeks, “It is the general practice in the field of fetal surgery to treat the mother for pain as if we are treating the fetus. All the components are there for feeling pain, and we can quantify the physiological responses associated with pain at 20 weeks, such as the production of hormones. And shouldn’t the burden of proof be on those arguing there is no fetal pain at this point rather than on those arguing there is?”


Moreover, 20 weeks is only marginally shy of viability, Dr. Sean Kenney, a Nebraska maternal-fetal specialist, told the senators. “Some 22-week babies and most 23-week babies” prematurely delivered at his hospital were considered viable and their resuscitation offered to the parents, while his hospital’s neonatal life guidelines recommended “full resuscitation for all 24-week babies, unless there are previously identified conditions incompatible with life.”

As well, constitutional law expert Teresa Collett, a law professor at the University of St. Thomas in Minneapolis and a declared candidate for Congress there, laid out the grounds for presenting a “case of first impression” — a new argument to the higher courts that could well make it to the Supreme Court.

Schmit-Albin says Collett’s arguments were crafted with the Supreme Court, in particular swing Justice Anthony Kennedy, in mind. In a 2007 ruling, Carhart v. Gonzalez, Kennedy provided the fifth vote upholding a federal law banning late-term abortion with language affirming the state’s interest in the fetus in the last trimester.

Carhart stated in a news release that he was “extremely saddened” at the passage of the bills, which would “make it harder for patients to get an abortion when they really need them, when they are under the most desperate of circumstances. … Even a woman who has been hospitalized and diagnosed suicidal or a young girl who has been raped, even raped by a close family member, would not be able to obtain an abortion after 20 weeks of pregnancy.”

Carhart has reportedly said he might appeal, as has the Washington D.C.-based Center for Reproductive Rights.

Counter Arguments

Arguments presented by Grissom and Kenney fly in the face of existing jurisprudence, claims Nancy Northup, president of the Center for Reproductive Rights. She told Associated Press that the fetal-pain law is “flatly unconstitutional. It absolutely cannot survive a challenge without a change to three decades of court rulings.”

City University of New York law professor Caitlin Borgmann, who testified at the hearing for the Center for Reproductive Rights, told the Register that “science on this issue [of fetal pain] is very controversial and is greatly in dispute.” Those testifying that fetal pain was present at 20 weeks “hadn’t done any research themselves but were simply repeating what they had read,” she said.

What We Didn’t Know

Borgmann said the new fetal-pain law is unconstitutional in two respects. “First, the Supreme Court has indicated that viability is the test for when states can ban abortions,” she said. “This would push back several weeks from that time. Second, the Supreme Court has said the state’s interest in the fetus can’t outweigh the woman’s right to protection for her health,” by which the court means “her mental or emotional health. This bill specifically narrows the exception to the physical health of the woman.”

However, Collett told the Register that while the Supreme Court has set viability as the moment at which the state can ban abortions, “it has not prohibited the date being moved earlier. And it would not be unconstitutional to do so.”

Nor has the exception been insisted on by the Supreme Court as broadly as Borgmann and Northup insist. “The way the Supreme Court worded it in Casey v. Planned Parenthood in 1990,” said Collett, “was that an exception [to the abortion ban] could be made if there were a serious risk of a substantial and irreversible impairment to a major bodily function” in the mother.

New Evidence

Added Collett: “It’s reasonable to expect a constitutional challenge to this law, but I also think there is a very strong possibility of it surviving the challenge. And that’s because the courts will see new medical evidence as to when fetuses feel pain, that wasn’t available in 1990 and more so in 1973 when Roe v. Wade was decided.”

Defenders of abortion rights also point to a statement from the College of Obstetricians and Gynecologists that there is no solid evidence of fetal pain at 20 weeks.

“That’s based on a single study, one of whose authors runs an abortion clinic,” Schmit-Albin said. “Can you believe an abortionist on the subject of fetal pain?”

The report she referred to appeared in the Journal of the American Medical Association in 2005. One author had previously been a lawyer for the National Abortion and Reproductive Rights Action League, while a second was the director of a San Francisco abortion clinic.

Six states have passed laws requiring abortion providers to inform women that their fetuses can feel pain at 20 weeks.

Said Schmit-Albin, “Americans aren’t comfortable with the thought of babies suffering, and what with ultrasound and fetal surgery, we know what unborn babies look like at 20 weeks and that they can feel pain — which we didn’t know and the judges didn’t know when Roe v. Wade was decided 37 years ago.”

Steve Weatherbe writes from Victoria, British Columbia.