In a sea of small stories about this or that state legislature passing yet another restriction on abortion, it might be hard to see why pro-choice activists became especially agitated over a law, called the "Pain Capable Unborn Child Act." Passed on Tuesday, the law bans most abortions in Nebraska after 20 weeks. Much of the news coverage lumped it into the usual restrictions on late-term abortions.
But this law breaks new ground in the war on abortion rights in a couple of important ways. The ostensible reason for this law is to restrict the practice of Nebraska-based Dr. LeRoy Carhart, who agreed to take on many of the difficult, third-trimester abortion cases that would have been handled in the past by Dr. George Tiller, who was shot in May 2009. But the law goes much further than just that. For one thing, it bans abortions in the second half of the second trimester, 20-24 weeks, not just the third trimester. More importantly, the law explicitly challenges the standard set out in Roe v. Wade, which established the viability of the fetus as the limiting factor in abortion. Nebraska's big and new idea is to replace viability with the much vaguer concept of fetal pain.
The original Supreme Court decision legalizing abortion laid out the gestational age at which a fetus can survive outside of the womb as the point at which the state could get involved, and restrict access to abortion. That point has shifted a bit over the years but is generally set around 24 weeks. After that, many states restrict access to abortion. The Nebraska legislature set out to attack that standard. It frames the state interest as "reducing or preventing events where pain is inflicted on sentient and nonsentient creatures." The legislature then set this point at 20 weeks gestation, based on a some dubious science.
Numerous states have used the "fetal pain" argument to try to create obstacles for abortion providers. Minnesota, Oklahoma, and Texas, among other states, require doctors to tell patients that fetuses after 20 weeks gestation can feel pain. However, the scientific basis for this claim is questionable at best. A review of 2,000 medical journal articles published in the Journal of the American Medical Association in 2005 suggested that the absolute earliest a fetus could actually feel pain would be 28 weeks. Other states, like South Dakota, have passed laws forcing doctors to say things that are verifiably false. But this new law, which would take effect in six months, moves from the realm of simply airing unscientific statements to cutting off actual access to abortion because of bad science.
It's clear the anti-abortion activists have larger aspirations. The Supreme Court upheld a federal partial-birth ban in 2007, Carhart v. Gonzales, and anti-abortion activists picture another go-round with this new law. But here's good reason to believe they will fail. Their hopes hang on the swing vote of Justice Kennedy, who wrote the 2007 opinion that upheld the federal partial-birth abortion ban. However, Kennedy's vote that time around didn't require him to reverse course on his long-standing willingness to stand by viability as the standard for abortion restrictions—he is, after all, one of the three judges who crafted the compromise in Planned Parenthood v. Casey in 1992 that upheld the core of Roe v. Wade. As Nancy Northup, the president of the Center for Reproductive Rights explained, "It would take a rethinking by Justice Kennedy of the architecture of Roe v. Wade" in order for him to vote to uphold this new law.
Should the court defy expectations and uphold this new ban, the effect on the availability of abortions performed at or after 20 weeks would be dramatic. Most states don't bother to restrict abortion pre-viability, because the Supreme Court precedent forbids it. Should that change, we can expect a wave of conservative states passing laws restricting abortions at 20 weeks and quite likely experimenting with other justifications that allow bans at earlier stages.
According to the Guttmacher Institute, 20 percent of abortion providers quietly offer abortions in the 20-24 week period. But the number of abortions performed after 20 weeks constitutes only 1 percent of the total, and most of that 1 percent happen before viability. Even the three remaining clinics that perform abortions after 24 weeks do so rarely.
At least some abortions after 20 weeks occur because of fetal abnormalities not discovered until after certain tests are possible. We know that women have such late surprises and humane laws should be nimble and unintimidating enough to accommodate them. But the Nebraska law does its best not to allow most medical exceptions. Under current law, the medical indications for late-term abortions include fetal abnormalities and the health, including the mental health, of the mother. The new law narrows the definition so that a doctor must be able to prove that the pregnancy could cause death or "substantial and irreversible physical impairment of a major bodily function." The law explicitly excludes the threat of suicide as a reasonable threat of death or substantial impairment.
In hearings about the law, the Nebraska Judiciary Committee heard testimony from Tim Mosher, whose wife Dawn was told that the daughter she was carrying had a severe form of spina bifida, a birth defect where the spinal canal doesn't close completely. The diagnosis for the girl, if born, was a brief life filled with pain. Like many parents in this situation, the Moshers saw the abortion as an act of mercy. But this kind of pain, which is beyond scientific doubt, is not a kind the law takes into account.
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