Late term abortion ban passed in Nebraska

Pain Capable Unborn Child Protection Act

Nebraska has passed a late term abortion ban. Many in the prolife community will applaud the effort, some will be concerned about certain legal ramifications. Nebraska is to be commended for boldly speaking and acting for the unborn.

New Abortion Law in Nebraska on Fetal Pain Could Weaken Roe v. Wade Further

by Steven Ertelt
LifeNews.com Editor
April 13, 2010

Lincoln, NE (LifeNews.com) -- The Nebraska legislature has signed off on a bill that Governor Dave Heineman will sign today that could head to the courts and ultimately weaken further the Roe v. Wade Supreme Court decision that has resulted in 52 million abortions. The bill 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.

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.

National Right to Life attorney Mary Spaulding Balch told LifeNews.com that 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 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."

The pro-life attorney rebutted the response from pro-abortion groups that unborn children cannot feel pain until later in pregnancy when nerves reach the cerebral cortex.

“Since 2007, medical research, triggered by the identification of consciousness in children lacking a cortex from birth, has indicated that nerve connection to the cortex is not essential to experience pain. In fact, informed specialists have concluded that the subcortical plate, to which nerves from the pain receptors are linking at 20 weeks, fulfills that function," she explained.

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.”

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.