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Neb. fetal pain law could be game-changer

LINCOLN, Neb. (BP)–In the same way America’s views on abortion were transformed by the debate over partial-birth abortion, a first-of-its-kind Nebraska law spotlighting unborn child pain could further change hearts and minds and eventually lead to a gutting of Roe v. Wade and its companion cases, pro-life leaders say.

The law bans nearly all abortions at or after 20 weeks because of fetal pain and is scheduled to go into effect Oct. 15. But it almost certainly will face a court challenge that its supporters hope ends up before the U.S. Supreme Court.

The law is, these pro-lifers say, the next logical step in the abortion legal battles following a decade-long struggle over partial-birth abortion bans that resulted in a landmark Supreme Court victory in 2007. The law could be the most significant piece of pro-life legislation by a state legislature in years.

“The partial-birth abortion debate allowed us for the first time in 30 years to actually get the baby into the debate. This bill in Nebraska continues that debate,” Mary Spaulding Balch, state legislation director for National Right to Life, told Baptist Press. “It continues the debate around the unborn child. I think that that is crucial to us ultimately winning protection for the unborn child.”

The law does not seek to have all abortions banned but does strike at the heart of Supreme Court abortion precedent, particularly Roe’s 1973 companion case Doe v. Bolton, which ruled that a woman could have an abortion if her physical, emotional or mental health was threatened. That definition of “health” created a giant loophole that allowed a woman to obtain an abortion during any month of her pregnancy for any reason, despite the fact that Roe itself said states could ban post-viability abortions except when it was necessary to “preserve the life or health of the mother.”

The Nebraska law also strikes at Roe’s holding that only post-viability abortions can be prohibited.

The law, passed by the state’s unicameral legislature 44-5 and signed April 13 by Republican Gov. Dave Heineman, asserts there is “substantial medical evidence that an unborn child has the physical structures necessary to experience pain” by 20 weeks after fertilization. It says Nebraska has a “compelling state interest” in protecting unborn children when evidence indicates “they are capable of feeling pain.”

If upheld and then copied by other states, the law could prohibit far more abortions than does the partial-birth abortion ban, which prohibited only a particular procedure. The Nebraska law allows for exceptions when the mother’s life is threatened or when there is a “serious risk of substantial and irreversible physical impairment of a major bodily function.”

“It is one of the first attempts to circumscribe the otherwise illimitable scope of the Doe v. Bolton health exception,” Steven H. Aden, senior counsel for the Alliance Defense Fund, a Christian legal group, told BP. “It asserts the interest of the state not to allow the Bolton health exception to become the exception that swallows the rule.”

It is sadly ironic, Aden said, that current federal law provides more protection for animals in slaughterhouses than it does for the unborn. Under the federal Humane Slaughter Act, certain livestock must be unconscious before they are killed.

“Even when you’re about to slaughter them, the law requires that you do so in a way so that they don’t feel pain,” Aden said. “And if we’re treating animals that way, why do we treat babies differently?”

One of the leading researchers in the subject of unborn child pain is Kanwaljeet Anand, a professor of pediatrics at the University of Tennessee Health Science Center (Memphis) who helped break medical ground more than 25 years ago when he discovered that newborns — just like adults — could feel intense pain during operations and needed anesthesia. It was a common belief at the time that newborns’ nervous systems did not feel pain as did adults and that any anesthesia would possibly be harmful. His research changed medical practice so much that today anesthesia is also used during operations on unborn children in utero. Anand’s research in recent years led him to believe that unborn children feel pain by 20 weeks. He even argues that the unborn’s sensitivity to pain may be more intense than that of adults.

National Right to Life’s Balch says science should impact the abortion debate.

“This would be a case of first impression for the court because it has never been presented to the court before,” she said. “Back in 1973 when Roe v. Wade was foisted upon us, the scientific information that we had about the developing unborn child was not as developed. There has been an explosion in science in what we know about that unborn child. We even now have a window to the womb with 4-dimensional ultrasound. We also have surgery on children in utero.

“What the state of Nebraska is saying to the Supreme Court is, ‘We have new evidence that was not before the court before and we think we have a compelling interest in the life of that child.'”

The 1973 medical data cited in Roe is obsolete, stating that “viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” Thanks to modern technology, babies born at 22 and 23 weeks have survived. In 2007 a baby born at 21 weeks and six days survived.

Pro-lifers hope the law — even if it is struck down — will change minds about abortion, just like the debate over partial-birth abortion did. In February 1995, nine months before a partial-birth abortion ban first passed the U.S. House of Representatives, 33 percent of adults in a Gallup poll said abortion should be legal “under any circumstances.” By August 1997 — just prior to President Clinton vetoing a partial-birth bill for the second time — that number had dropped to 22 percent, and it stands today at 21 percent.

Similarly, self-described pro-choicers topped pro-lifers 56-33 percent in a 1995 Gallup poll — a stat that reversed itself last year, when 51 percent described themselves as pro-life, 42 percent pro-choice.

“The American people were shocked [at partial-birth abortion],” Balch said. “You looked at all the polling before and after the debate and the American people have really moved because of that information.”

Washington Post columnist Marc A. Thiessen, a fellow with the American Enterprise Institute, wrote that a “national discussion on the topic of ‘fetal pain’ can only help the pro-life movement.”

If the case makes it to the Supreme Court, the pivotal vote figures to be Justice Anthony Kennedy, who in the past voted to uphold Roe v. Wade but who also wrote the majority opinion in the 2007 case upholding the federal partial-birth abortion ban.

“I think based on the current makeup of the court, even with [Justice John Paul] Stevens retiring, that we would have five justices who would give serious consideration to what Nebraska is saying,” Balch said.
Michael Foust is an assistant editor of Baptist Press.

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