Nebraska Challenges Roe V. Wade With Bogus "Fetal Pain" Law


On the heels of a law requiring a variety of screenings before women can get an abortion, Nebraska has now challenged Roe v. Wade by banning abortions after 20 weeks, on the grounds that that’s when fetuses feel pain.

The law, signed by Nebraska’s governor yesterday, is the first in any state to use fetal pain as the standard for restricting abortion rights. And since Roe v. Wade designates fetal viability — which occurs no earlier than 22 weeks — at the point when states can restrict abortion, Nebraska may be headed for a Supreme Court fight. Newsweek‘s Sarah Kliff doesn’t think they’ll win. She writes,

Will the courts turn on almost 40 years of precedent, and trade in the viability standard for one that considers the possibility of fetal pain a more “compelling” point? It’s doubtful: the court has, on numerous occasions, reaffirmed its commitment to the viability standard. Moreover, I think it’s important to note here that research suggests fetuses cannot feel pain at 20 weeks, undermining this particular bill’s scientific credibility.

The AP backs up her last point, reporting that the American College of Obstetricians and Gynecologists sees no evidence that fetuses feel pain at 20 weeks. But anti-choice advocates are optimistic. According to Kliff, some point to Justice Anthony Kennedy’s opinion in Gonzalez v. Carhart, in which he said, “A State may take measures to ensure the medical profession and its members are viewed as healers, sustained by a compassionate and rigorous ethic and cognizant of the dignity and value of human life, even life which cannot survive without the assistance of others,” as evidence of a willingness to budge on viability. And the Times quotes Mary Spaulding Balch, director of state legislation at National Right to Life, who says, “You need five votes. I think there are five on the current Supreme Court who would give serious consideration to Nebraska’s claim.”

It’s not all that surprising that Nebraska has gone from condescending to women — by putting them through screenings for “physical, psychological, emotional, demographic, or situational” issues that might possibly affect them pre- or post-abortion — to ignoring real science for political ends. Nor is it shocking that the measure may have been specifically designed to target Dr. Leroy Carhart, who promised to perform late-term abortions in Nebraska in the wake of Dr. George Tiller’s murder. The efforts of anti-choicers these days are often anti-woman, anti-science, and specifically aimed at the few providers who have stepped in to do Dr. Tiller’s dangerous and often thankless job. But those who view abortion as a crime committed by callous or stupid women gulled by money-hungry doctors (and increasingly, this seems to be the view the anti-abortion side takes) should read a freelance writer’s anonymous — and heartwrenching — story of her abortion in Salon. Of her unplanned pregnancy at age 34, she writes,

I considered it, imagined a future with a child and without a partner. What if the child were born healthy? What if he or she were born with defects that I, albeit unwittingly, caused? How would I support us? Where and how would we live? There was not a scenario that I didn’t run through, each one terrifying, impossible, sending me deeper into a black hole from which I’ve yet to fully emerge.


Just as no one wants to get the flu, diabetes or even cancer — though people still leave their homes, eat junk food, and smoke — no woman wants to experience an unplanned pregnancy. But it happens. Each year, almost half of all pregnancies among American women are unintended. When I was pregnant, I’d never before so desperately needed affordable healthcare and services, often two very different things. And I’d never felt more like I didn’t deserve them. But when it comes to our health, who deserves what isn’t, or at least shouldn’t be, the point.

I’d make a slightly different argument — that we all deserve affordable and compassionate care, especially at times in our lives that might make us feel undeserving. And we also deserve the right to choose. Contrary to what some say about heedless and unfeeling pro-choicers, reproductive decisions are difficult enough without the addition of bad science and government concern-trolls. Let’s hope the Supreme Court recognizes that.

Nebraska Law Sets Limits On Abortion [NYT]
New Laws In Neb. Add Restrictions On Abortions [AP, via Brattleboro Reformer]
My Abortion, Their Political Ploy [Salon]
Newly Passed ‘Fetal Pain’ Bill In Nebraska Is A Big Deal [Newsweek Gaggle Blog]
Putting Abortion Advocates In A Box [National Post]

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