April 14, 2010 — Nebraska Gov. Dave Heineman (R) on Tuesday signed a first-of-its kind bill (LB 1103) that bans abortion beginning at 20 weeks based on supporters' claims that fetuses can feel pain at that point, the New York Times reports. The bill was delivered to Heineman after the state Legislature passed the measure 44-5 earlier in the day. It is scheduled to go into effect mid-October. Heineman on Tuesday also signed a separate measure (LB 594) requiring abortion providers to screen women for possible mental or physical risks before an abortion.
The "fetal pain" law states that the only exceptions to the ban would be in cases of medical emergency, to save a woman's life or avoid "substantial and irreversible physical impairment of a major bodily function," which experts say is an effort to exclude an exception based on mental health. Abortion-rights groups say the law is designed to set off a Supreme Court challenge to legal abortion in the U.S., the Times reports.
According to officials at the Guttmacher Institute, one of the most notable aspects of the law is that it seeks to curtail abortion rights from a new perspective -- the assertion that fetuses can feel pain. Although some states require women to be told that fetuses might have the capacity to feel pain, no state cites such a claim as a reason to restrict abortion, the Times reports (Davey, New York Times, 4/13).
If the law were challenged in court and upheld, it would change the foundation of abortion laws across the U.S., according to the AP/Yahoo! News. Historically, U.S. abortion laws are based on viability, or a fetus' ability to survive outside the womb, which is determined on a case-by-case basis.
Nancy Northup, president of the Center for Reproductive Rights, said that the law is "flatly unconstitutional" and "absolutely cannot survive a challenge without a change to three decades of court rulings." She added, "Courts have been chipping away at abortion rights, [and] this would be like taking a huge hacksaw to the rights" (Jenkins, AP/Yahoo! News, 4/13). Northup said abortion-rights groups are considering all their options, including a possible court challenge (New York Times, 4/13).
Nebraska-based abortion provider LeRoy Carhart also has suggested that he might challenge the law. Carhart is believed to be the only provider in state who would be affected by the statute (AP/Yahoo! News, 4/13).
Kyle Carlson, a lawyer for Planned Parenthood of the Heartland, said the group will continue to provide abortion services. The group does not offer abortions after 20 weeks. Carlson said that the "general principle behind both bills ... is to try to intimidate women out of believing they have a choice they can make about their reproductive health" (Stern, Reuters, 4/13).
Supporters of the Nebraska law argue that a U.S. Supreme Court's 2007 ruling to uphold a federal ban on a certain late abortion procedure suggests that states have an interest in protecting fetuses. They also claim that studies and physicians' testimony indicate that fetuses feel pain at 20 weeks.
Caitlin Borgmann, a law professor at the City University of New York, said, "There is certainly no solid scientific evidence establishing that a fetus can perceive pain at these earlier stages, so any court decisions to up hold such broader laws could only do so by disregarding the importance of good scientific evidence." She added that the U.S. Supreme Court would have to overturn previous abortion-related rulings -- including the 1992 ruling in Planned Parenthood v. Casey, which upheld a woman's rights to an abortion before viability -- to uphold the law (AP/Yahoo! News, 4/13).
ABC News reports that six states from 2005 through 2010 considered bills that would require doctors to counsel women seeking abortions about fetal pain. Although no other states are currently considering the kind of restrictions in the Nebraska bill, Northup said similar bills likely will emerge, particularly if the Supreme Court does not become involved. Northup said, "Unfortunately, whenever the court shows that they're not going to be strong in protecting the rights of Roe v. Wade, you do see copycat bills in other states." She added that is would be "hugely devastating" if the court were to uphold the law (Harris et al., ABC News, 4/13).
According to the AP/Yahoo! News, the law partially is designed to target Carhart. Lawmakers in Kansas recently passed a similar measure that supporters say aims to prevent Carhart from offering late abortions in the state. Gov. Mark Parkinson (D) has not acted on that bill (AP/Yahoo! News, 4/13).
ABC's "World News" on Tuesday featured a segment examining the new law and supporters' claims that a fetus can feel pain (Harris, "World News," ABC News, 4/13).
Debra Ness, publisher & president, National Partnership
Andrea Friedman, associate editor & director of reproductive health programs, National Partnership
Marya Torrez, associate editor & senior reproductive health policy counsel, National Partnership
Melissa Safford, associate editor & policy advocate for reproductive health, National Partnership
Perry Sacks, assistant editor & health program associate, National Partnership
Cindy Romero, assistant editor & communications assistant, National Partnership
Justyn Ware, editor
Amanda Wolfe, editor-in-chief
Heather Drost, Hanna Jaquith, Marcelle Maginnis, Ashley Marchand and Michelle Stuckey, staff writers
Tucker Ball, director of new media, National Partnership