Nebraska Ban on Late-term Abortions Based on Fetal Pain May Not Get Lawsuit

State   |   Steven Ertelt   |   Jul 1, 2010   |   9:00AM   |   WASHINGTON, DC

Nebraska Ban on Late-term Abortions Based on Fetal Pain May Not Get Lawsuit

by Steven Ertelt Editor
July 1
, 2010

Lincoln, NE ( — Pass a pro-life law limiting abortions in most any state and pro-abortion legal groups usually file an immediate lawsuit seeking to have it declared unconstitutional in courts. However, because the prospects of success are low and it could establish a strong pro-life legal precedent, one pro-life law may escape.

The law is the newly-minted one in Nebraska that bans abortions after 20 weeks of pregnancy based on the well-established concept of fetal pain.

By a vote of 44-5, the Nebraska unicameral legislature this morning gave final passage to the Pain Capable Unborn Child Protection Act introduced by Speaker Mike Flood.

Caitlin Borgmann, a law professor at The City University of New York, recently told the Associated Press that there are potential legal drawbacks to challenging the new statute.

"It’s a balancing act that anybody who wants to challenge the laws is going to have to assess, whether the strategic risks of bringing a lawsuit outweigh the likelihood of a victory," she said, adding it could be seen as "too risky" by abortion advocates.

"The court, in my view, can’t uphold this (NE ban) without changing the way abortions are restricted," Borgmann worried.

In fact, that’s the legal reasoning behind a top pro-life group bringing the new law.

National Right to Life attorney Mary Spaulding Balch told earlier this year the bill 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 ban on partial-birth abortions that made its way to the Supreme Court twice brought home the pro-life message that abortion kills an unborn child and was responsible for shifting public opinion on abortion squarely into the pro-life category.

It also paved the way for states to, for the first time since Roe, ban at least some abortions.

The Pain Capable Unborn Child Protection Act could see the same group of five members of the Supreme Court 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 "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."

Ironically, Nebraska’s partial-birth abortion ban led to the first Supreme Court case, in 2000, that declared the ban unconstitutional.

The high court, after member changes, came back recently and overturned that decision in a new case concerning a national partial-birth abortion ban Congress passed.

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.”

Related web sites:
National Right to Life Committee –
Nebraska Right to Life –


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