New Pro-Life Law Banning Abortions Based on Fetal Pain Awaits Court Fight

State   |   Steven Ertelt   |   Apr 20, 2010   |   9:00AM   |   WASHINGTON, DC

New Pro-Life Law Banning Abortions Based on Fetal Pain Awaits Court Fight

by Steven Ertelt Editor
April 20
, 2010

Lincoln, NE ( — Lawmakers in Nebraska put their state on the pro-life map by passing a first-of-its kind piece of legislation that would ban abortions after 20 weeks of pregnancy based on the notion that unborn children feel pain. The legislation will likely be headed for court, but that’s exactly what pro-life groups are after.

Expected legal challenges from abortion advocates will have LB 1103 in the courts, which is where pro-life advocates hope to shape the future of abortion jurisprudence.

The bill was drafted with the idea of moving the Supreme Court further along its current path of watering down Roe v. Wade with the hopes of overturning it once a pro-life majority is present on the court.

The Supreme Court is currently divided 5-4 in favor of unlimited abortion, but the swing vote, Justice Anthony Kennedy, sided with conservative justices in the most recent abortion case dealing with partial-birth abortion.

The Nebraska fetal pain abortion ban is seen as the next step down the path — taking the ruling upholding the national ban on partial-birth abortions and moving the high court yardstick from assessing abortion laws based on the trimester system and establishing new standards.

Should the Supreme Court uphold the Nebraska ban, more abortions will be able to be prohibited and the legal focus will continue to shift in the direction of unborn children and away from supposed privacy and equal protection arguments used to uphold the unlimited right to abortion that has resulted in 52 million abortions in the United States since Roe v. Wade in 1973.

The Nebraska abortion law is scheduled to take effect in October, but because of the typical years-long process of getting a lawsuit through the court system, any potential ability of the state to uphold the late-term abortion ban is years away.

Caitlin Borgmann, an abortion law expert at the City University of New York, told the Associated Press that a lawsuit filed by abortion advocates will likely argue that the abortion ban doesn’t have a mental health exception for women — even though numerous studies have shown that abortion presents more mental health concerns for women than carrying a pregnancy to term.

When a lawsuit does come, late-term abortion practitioner LeRoy Carhart, based outside Omaha, is expected to be the main plaintiff.

The new law fires a shot across Carhart’s bow and he would be most directly affected by its provisions.

Not surprisingly, a one of the few late-term abortion practitioners in the nation — and with a renewed limelight given the recent death of George Tiller — Carhart was the plaintiff in the two big partial-birth abortion cases to appear before the Supreme Court in the last 10 years.

The Center for Reproductive Rights also suggested in a letter to Gov. Dave Heineman, that it will be involved in the lawsuit as it is against pro-life legislation in other states.

This bill is clearly unconstitutional and is the most extreme abortion law passed in this country in recent memory," its letter said.

Nebraska lawmakers also passed an abortion screening bill that may also find its way into the courts, but the legislator who sponsored it, Senator Cap Dierks, isn’t worried.

"I think that our bill’s pretty safe," Dierks told KCSR.

"What we do is ask for what I call common sense legislation to ask that the doctors who’re going to provide the abortions do some medical tests for risks that are out there. Those are the same things that should happen whether you’re coming in for an abortion or a tonsillectomy," he said.

He told the radio station the governor and attorney general’s offices are willing to finance the defense of the laws.

"From what I gather, the governor’s willing to do that," Dierks says. "I think he’s had some discussion with the attorney general already on some of those bills and so has Senator Flood. I think we’ll be ready to take on whatever the challenges are."

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