Monday October 18, 2010

Nebraska Fetal Pain Law Goes Into Effect – Other States May Follow Suit

By Peter J. Smith

OMAHA, Nebraska, October 18, 2010 ( – A landmark law banning abortion after 20 weeks gestation, on the basis that an unborn child feels pain at that age, went into effect in Nebraska on Friday. Pro-life advocates have expressed confidence that other states will follow Nebraska’s lead in upcoming legislative sessions.

“This is a historic and celebratory moment for those who work to protect mothers and unborn children,” said Tony Perkins, President of the Family Research Council. “This is the first time in history that a law recognizing fetal pain has been enacted. This new law represents the next wave of momentum for the pro-life movement and is a major step toward a post-Roe future.”

The Abortion Pain Prevention Act (LB 1103), authored by state Sen. Mike Flood, was signed into law by Republican Gov. Dave Heineman in April. It is the first law banning abortion on the basis of fetal pain in the United States, whereas Roe v. Wade legalized abortion on the basis of what in 1973 was considered the point of fetal viability.

No constitutional challenge to the law has yet been filed by abortion advocates, which Nebraska Right to Life finds telling.

“While LB 1103 was going through the Nebraska Legislature last Spring, abortion advocates asserted that a legal challenge was forthcoming,” said Julie Schmit-Albin, Executive Director of Nebraska Right to Life.

Schmit-Albin added that abortion advocates have apparently thought twice about the risks of challenging the measure.

“They can’t risk taking Nebraska’s fetal pain ban all the way to the U.S. Supreme Court, for fear that the new line of demarcation for abortion under Roe will be pain instead of viability,” the pro-life leader said.

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.

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.

Fetal pain may even be more acute than it would be for older human beings, 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.

Schmit-Albin said her group has also been contacted by a number of pro-life groups which are interested in getting state legislatures to enact fetal pain bans for their respective states.

She added that the issue of fetal pain now is front and center on the national stage.

“They never saw LB 1103 coming, they couldn’t stop it and now they know America will be talking about the pain that unborn babies feel during abortion,” Schmit-Albin continued. “The abortion industry is in a world of hurt on the fetal pain issue and they haven’t found a way to handle this debate.”

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