Proposed Abortion Bill Focused on When Fetus Feels Pain

Feb. 25, 2010— -- Nebraska legislators are proposing a bill on abortion that, if passed, would be the strictest in the nation and would ban most abortions after 20 weeks into a pregnancy.

The first public hearing on the so-called Abortion Pain Prevention Act today drew a crowd of 100, and medical and legal experts from as far away as New York City, Alaska and Boston.

The Nebraska legislature's judiciary committee adjourned without taking action and will now discuss the bill in executive session, where the bill could be amended, tabled or passed on to Nebraska's full one-house legislature.

During the nearly four-hour hearing, the eight-member committee heard testimony from 19 people -- including a handful of doctors, several lawyers and two Nebraska parents who opposed the bill and spoke about how abortion had been the right decision for their family.

The proposed bill would ban abortions after fetuses reach 20 weeks, rather than the current limit that falls around 24 weeks. The only exception on the 20-week limit is if the procedure would "avert serious risk of substantial and irreversible physical impairment of a major bodily function" or save the pregnant woman's life.

This would be a marked change because current abortion bans in the U.S. are determined by fetal viability, or the point at which a fetus can live outside the womb -- which usually occurs around 24 weeks.

The Nebraska bill's sponsor, state Sen. Mike Flood, speaker of the legislature, acknowledged that this would be a major shift.

"My bill does not center around viability," Flood said. "It creates a new standard."

Debate Over Fetal Pain

Abortion rights advocates argue the bill's parameters are unconstitutional and wouldn't be upheld in court, but anti-abortion activists contend that research suggesting a fetus can feel pain should be the basis for new restrictions on abortions.

"There are not many places in America where you can kill an unborn child who is capable of feeling pain," said Mary Spaulding Balch, a lobbyist for the anti-abortion group National Right to Life, during a press conference before the committee hearing. "Unfortunately, one of those places is here in Nebraska, and Nebraska is fastly becoming the mid-America late-term [abortion] capital."

Nebraska doctor LeRoy Carhart recently made national news for vowing to perform abortions late into pregnancies after the murder of his associate, George Tiller, a Kansas abortion provider, last May.

Physicians like Carhart would face stricter limits under the proposed bill, which would draw the determining line for a ban on most abortions at 20 weeks. Supporters of the 20-week limit argue that medical research shows fetuses can feel pain at 20 weeks.

"The abortion procedures typically performed in the second and third trimesters -- I have no doubts -- would likely cause the fetus to experience excruciating, intense pain," said Ferdinand Salvacion, associate professor of medicine at Southern Illinois University.

Opponents of the bill argue that scientific research on fetal pain -- and if it occurs at 20 weeks -- is inconclusive or faulty. Plus, they argue, fetal viability, not fetal pain, is what the Supreme Court uses as a determinant for when abortions are normally banned.

"The Supreme Court has reaffirmed that line time and time again," said Caitlin Borgmann, a law professor at the City University of New York School of Law, who was in Lincoln, Neb., for the hearing.

Instituting Stricter Health Exceptions

The bill also specifies only physical health concerns as acceptable reasons for an abortion after the 20-week limit. That would put into place the narrowest health exception in the nation, as mental health isn't included. Interpretation of current law allows for mental health exceptions.

Borgmann, the law professor, can envision problems with this narrow health exception clause.

Imagine, she said, a woman who finds out after the 20-week mark that her baby lacks a brain, meaning the fetus isn't viable and will never become viable.

"In that circumstance, the woman would be unable to get an abortion," Borgmann said. "And a woman in that circumstance, one could imagine, would undergo severe emotional trauma having to carry that pregnancy all the way to term, having people as her about the pregnancy, whether she's named the baby."

In short, Borgmann said, the bill as proposed is unconstitutional and would surely face challenge in court -- a challenge she predicted the state would lose.

"So I think if the legislature wants to pass this bill they should do it with eyes wide open" knowing that they'd face costly legal fees down the road, she said.

History of Abortion Rulings

The bill could put Nebraska on the national stage in the abortion debate for the second time in recent memory. A similarly controversial bill, banning late-term abortions, which are medically dubbed intact dilation and extraction (D&X) and known to anti-abortion activists as "partial-birth" abortions, went through the Nebraska legislature in 1997.

The U.S. Supreme Court, however, held the ban unconstitutional in 2000.

The setback for abortion opposition didn't last long: In 2003, the federal government outlawed D&X procedures, and the U.S. Supreme Court upheld the law's constitutionality in its 2007 ruling on Gonzales v. Carhart.

Dorothy Yeung, legislative counsel for National Right to Life, which supports the bill, said the new bill could mark a turning point for abortion legislation across the nation.

"We strongly believe that, upon the bill's passage, other states will follow it," Yeung said.

Janet Crepps with the Center for Reproductive Rights sees it another way: "It's essentially the legislature trying to practice medicine."

And, she added, "It should not be the job of the legislature to pass bills that they know are unconstitutional."