Nebraska Enacts First-Ever Abortion Ban Based on Fetal Pain
By Peter J. Smith
Updated: 7:16pm EST, 04/13/10
OMAHA, Nebraska, April 13, 2010 (LifeSiteNews.com) – Nebraska Gov. Dave Heineman signed into law today another landmark bill banning abortion after 20 weeks gestation, on the basis that an unborn child feels pain at that age. Just hours before, the Nebraska legislature had passed the legislation, the first of its kind in the United States. Pro-life advocates believe it could pose a direct and historic challenge to Roe v. Wade, the 1973 U.S. Supreme Court case that deprived the states the power to regulate or restrict abortion.
The “Pain Capable Unborn Child Protection Act” (LB 1103), authored by Speaker Mike Flood, was approved Tuesday in the Unicameral on the third and final reading of the bill, by an overwhelming pro-life majority of 44 in favor and 5 against. The governor wasted no time in signing the measure into law.
The law portends a fresh challenge and new look at the U.S. Supreme Court’s 1973 Roe v. Wade and Doe v. Bolton cases, which led to the virtual legalization of abortion on demand. The Nebraska law applies a different standard – that of the unborn child’s ability to feel pain – for restricting abortion, while the high court used the standard of what they then considered to be point of fetal viability.
“The Nebraska Legislature took a bold step today which should ratchet up the abortion debate across America,” said Julie Schmit-Albin, Executive Director of Nebraska Right to Life in a statement.
“LB 1103 creates a case of first impression for the courts to acknowledge the capability to feel pain as a compelling state interest to protect those unborn babies from an excruciatingly painful death.”
The legislation bans abortions after 20 weeks of post-fertilization age except in two cases: first, when the pregnancy puts the mother in danger of death or “substantial and irreversible” physical harm to a major bodily function. The second exception allows an abortionist to perform an abortion in order to increase the probability of a live birth, or to preserve an unborn child’s life and health after a live birth.
Although the topic of fetal pain is still under much discussion (and controversy, owing to its implications to the abortion debate) a growing consensus of medical knowledge has pointed to the fact that unborn infants experience pain by 20 weeks and possibly earlier.
Kanwaljeet “Sunny” Anand, a pioneer in the study of fetal pain and now a professor at the University of Arkansas for Medical Sciences, testified in 2004 on the federal partial birth abortion ban that after 20 weeks gestation, an unborn child would experience “severe and excruciating pain” from an abortion.
The pain may even be more acute than it would be for older humans, as some research indicates their immature nervous systems have not developed coping mechanisms that help the body better endure pain.
The law notes that unborn children have been observed to “seek to evade certain stimuli” in a manner that “would be interpreted as a response to pain.” Additionally, the bill says unborn children exhibit “hormonal stress responses to painful stimuli” that were reduced with the application of pain medication.
Abortionists who break the law would face a Class IV felony charge, which carries a penalty of a five year maximum prison sentence, $10,000 fine, or both. Women who obtain abortions of their unborn children would face no criminal penalties.
The bill would allow women and even the fathers of aborted unborn children to sue and seek damages from abortionists who violate the law.
The law goes into operation on October 15, 2010.