Fetal Pain Abortion Law Takes Effect in Nebraska, Could Set National Trend
by Steven Ertelt
October 15, 2010
Washington, DC (LifeNews.com) — A new fetal pain law is taking effect today in Nebraska that targets late-term abortions based on the pain an unborn baby will likely feel during the abortion procedure. The law could set a national trend of other states and Congress considering such measures and could lead to a Supreme Court battle.
The Nebraska law, Legislative Bill 1103, relies on significant medical research and expert testimony to prohibit abortions after 20 weeks of pregnancy on the basis that unborn children feel pain.
The legislation has been hailed by pro-life advocates across the country for its innovative approach and focusing the public’s attention on unborn babies who have been medically documented as pain capable at 20 weeks gestation.
“This will take off like wildfire,” Julie Schmit-Albin, executive director of Nebraska Right to Life, predicted in comments to the Omaha World-Herald newspaper.
The Nebraska bill has already inspired Sen. Mike Johanns, a Nebraska Republican, to press for a similar measure on the national level — and he used it to challenge pro-abortion president Barack Obama.
“How does anybody — pro-life or pro-choice — oppose this?” asked Johanns. “If the baby feels pain … then it is an issue of human compassion.”
The expected opposition — in the form of lawsuits from pro-abortion groups like Planned Parenthood or the Center for Reproductive Rights, have yet to materialize.
Mary Spaulding Balch, a pro-life attorney who is the state legislative director for the National Right to Life Committee, says abortion advocates may not want to have a national discussion on the pain unborn children feel because it draws attention to their humanity and need for legal protection.
But Janet Crepps, deputy director of the New York-based CRR law firm, told the newspaper to expect a legal battle.
“National Right to Life Committee can speculate as much as they want, but it is just that — speculation,” she said. "We will file a challenge to this unconstitutional law when the circumstances are appropriate. We will not, however, discuss our decision-making process publicly.”
The pro-abortion law firm worked with late-term abortion practitioner LeRoy Carhart, who operates out of the Omaha area, to challenge the state’s partial-birth abortion ban in 2000. That case ultimately resulted in the first Supreme Court opinion saying such bans are unconstitutional. The high court later reversed itself and upheld a national ban Congress passed during the Bush administration.
Planned Parenthood of the Heartland confirmed to the Omaha paper that it would not file a lawsuit against the new law.
But a lawsuit, Balch told LifeNews.com previously, would give the pro-life movement a chance to push back against prior Supreme Court opinion on abortion.
Balch says the law could make its way to the Supreme Court to alter national abortion law further and set a wide-ranging precedent.
"Although it will be a case of first impression, there are strong grounds to believe that five members of the current U.S. Supreme Court would give serious consideration to Nebraska’s assertion of a compelling state interest in preserving the life of an unborn child whom substantial medical evidence indicates is capable of feeling pain during an abortion," she said.
The Pain Capable Unborn Child Protection Act could see the same group of five members of the Supreme Court who backed the partial-birth abortion ban uphold it as constitutional and allow more abortions to be prohibited.
Balch says the genius of the measure is the scientific fact that unborn children can feel pain.
"By 20 weeks after fertilization, unborn children have pain receptors throughout their body, and nerves link these to the brain," she told LifeNews.com. "These unborn children recoil from painful stimulation, which also dramatically increases their release of stress hormones. Doctors performing fetal surgery at and after 20 weeks now routinely use fetal anesthesia."
A first of its kind in the United States, the Pain Capable Unborn Child Protection Act prohibits abortion after 20 weeks gestation except when the mother "has a condition which so complicates her medical condition as to necessitate the abortion of her pregnancy to avert death or to avert serious risk of substantial or irreversible physical impairment of a major bodily function or…it is necessary to preserve the life of an unborn child."
When looking at abortion case law, NRLC says it hopes a new analysis can be established that would ultimately lead to overturning Roe.
Balch says the pro-life group wants the Supreme Court to redraw the line away from the viability standard about when abortions can be prohibited.
“What I would like to bring to the attention of the court is, there is another line,” Balch said. “This new knowledge is something the court has not looked at before and should look at.”
Fetal pain is not a new concept and the leading national expert on the topic confirms unborn children definitely have the capacity to feel intense pain during an abortion.
Dr. Kanwaljeet Anand of the University of Arkansas Medical Center has said he and other specialists in development of unborn children have shown that babies feel pain before birth as early as 20 weeks into the pregnancy.
Anand said many medical studies conclude that unborn babies are "very likely" to be "extremely sensitive to pain during the gestation of 20 to 30 weeks."
"This is based on multiple lines of evidence," Dr. Anand said. "Not just the lack of descending inhibitory fibers, but also the number of receptors in the skin, the level of expression of various chemicals, neurotransmitters, receptors, and things like that."
Anand explained that later-term abortion procedures, such as a partial-birth abortion "would be likely to cause severe pain."
Dr. Jean Wright, an anesthesiologist specializing in Pediatric Critical Care Medicine, has also confirmed the existence of fetal pain during Congressional testimony.
“[A]n unborn fetus after 20 weeks of gestation, has all the prerequisite anatomy, physiology, hormones, neurotransmitters, and electrical current to close the loop and create the conditions needed to perceive pain. In a fashion similar to explaining the electrical wiring to a new house, we would explain that the circuit is complete from skin to brain and back," she said.
And Dr. Richard T.F. Schmidt, past President of the American College of Obstetricians and Gynecologists, confirms, “It can be clearly demonstrated that fetuses seek to evade certain stimuli in a manner which an infant or an adult would be interpreted as a reaction to pain.”
An April 2004 Zogby poll shows that 77% of Americans back "laws requiring that women who are 20 weeks or more along in their pregnancy be given information about fetal pain before having an abortion."
Only 16 percent disagreed with such a proposal, according to the poll, commissioned by the National Right to Life Committee.
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