Nebraska Lawmakers to Discuss Fetal Pain Abortion Bill

February 25, 2010 - 6:23 AM
A group of lawmakers is pushing to make Nebraska the first state to outlaw most abortions after 20 weeks of pregnancy based on the argument that the fetus might feel pain during the procedure.
Leroy Carhart

Nebraska abortionist Dr. LeRoy Carhart is seen at his clinic in Bellevue, Neb., in Dec. 2006. (AP File Photo/Nati Harnik)

Omaha, Neb. (AP) - A group of lawmakers is pushing to make Nebraska the first state to outlaw most abortions after 20 weeks of pregnancy based on the argument that the fetus might feel pain during the procedure.
 
Emboldened by the Supreme Court's 2007 decision upholding a ban on what abortion rights opponents call partial-birth abortions, in which a fetus is partially removed from the woman's womb and then destroyed, the Nebraska legislators are seeking to ban all late-term abortions except when the mother's life is threatened.
 
If the bill were to pass -- and it's unclear it would -- it would surely face a court challenge and could end up in front of the Supreme Court. Medical experts and others were expected to testify for and against the bill Thursday before the Legislature's Judiciary Committee.
 
No other state has attempted to restrict abortions based on the pain a fetus might feel, said Mary Spaulding Balch, the legislative director for National Right to Life, which helped arrange for the experts testifying on behalf of the bill.
 
Six states -- Arkansas, Georgia, Louisiana, Minnesota, Oklahoma and Utah -- require that pregnant women be told an abortion could cause pain for the fetus, according to the National Conference of State Legislatures.
 
The bill, which was introduced by Speaker of the Legislature Mike Flood, bases its assertion that fetuses feel pain on the testimony of doctors, some of it given during a 2005 Congressional hearing on the subject. It contends there is substantial evidence that by 20 weeks, fetuses seek to evade stimuli in a way that indicates they are experiencing pain.
 
But testimony from that hearing also suggests the medical community has not reached a consensus on fetal pain.
 
The American College of Obstetricians and Gynecologists says it knows of no legitimate evidence that shows a fetus can experience pain. It says a fetus' brain begins its final stage of development between the 20th and 40th weeks of pregnancy, and that certain hormones that develop in the final trimester also must be present for it to feel pain. It's not known exactly when those hormones are formed.
 
"I would hope Nebraska wouldn't become the new ground zero for this, but there appears to be a number of people in the Legislature that are pushing this issue," said Janet Crepps of the Center for Reproductive Rights, which opposes the legislation.
 
Crepps said Nebraska's proposed law would be unconstitutional and is a blatant attempt to get the abortion issue back before the Supreme Court, which established in its 1973 Roe v. Wade decision that a woman has the constitutional right to an abortion.
 
But supporters of the bill say the Supreme Court's ruling on what some call partial-birth abortion, in which the court for the first time upheld a ban on a specific type of procedure, opened the door to challenge other procedures.
 
They say the ruling acknowledged states have an interest in preserving fetal life. And they say the court discarded Roe v. Wade's viability requirement because the so-called partial-birth method could have been used to abort fetuses before they could survive outside the womb.
 
But the decision also distinguished the procedure from a more common abortion method used after 12 weeks of pregnancy. That was unaffected by the ruling. And ninety percent of all abortions occur in the first 12 weeks of pregnancy, and also were not affected.
 
The abortion debate intensified in Nebraska after the murder in May of prominent Kansas abortion provider Dr. George Tiller, one of the few U.S. doctors -- along with Nebraska's Dr. Leroy Carhart -- who provided third trimester abortions.
 
Anti-abortion groups have staged protests outside Carhart's clinic in Bellevue in recent months. Operation Rescue, the Wichita-based anti-abortion group, is pressing Nebraska lawmakers to investigate the clinic, said the group's president, Troy Newman.
 
When introducing the bill last month, Flood cited Carhart's practice as one reason the state needs to restrict abortion rights.
 
"With Dr. Leroy Carhart performing and advertising such late-term abortions here in Nebraska, the state needs to recognize the reality of what's going on," Flood said.
 
Carhart, 67, has twice challenged abortion bans before the Supreme Court, successfully defeating a Nebraska late-term abortion ban in 2000 because the state didn't provide for a woman's health, and losing as part of a broad challenge to the 2007 federal ban on the so-called partial-birth procedures.
 
Abortion rights proponents are worried anti-abortion groups, by tying Carhart's name to the current debate, are making him more of a target.
 
"I am worried, after Dr. Tiller's assassination, that any group should be targeting any abortion provider. It is very dangerous," Crepps said.
 
Carhart, through the Center for Reproductive Rights, declined to comment.
 
"He is deeply troubled by not only the assassination of Dr. Tiller but what that means to women who need abortion services," Crepps said. "His place in this is to, hopefully, continue to provide services that women need."