Nebraska Outlaws Almost All Abortions At 20 Weeks!

Just last week the Nebraska state legislature by a vote of 44-5 passed landmark legislation—The Pain-Capable Unborn Child Protection Act—setting a demarcation line on abortion services based on a substantial body of biomedical research that indicates unborn children can feel pain at 20 weeks. Governor Dave Heinemen (R-NE) signed the bill into the law, which will take effect this October. Once the law is enforced, abortion services will be illegal at and after 20 weeks gestation with exceptions only in cases of the threat of death to the mother or a serious risk of “substantial and irreversible physical impairment of a major bodily function.” Rape and incest are not included as valid exceptions. It is clear from this that there is a dual effort to skirt around the requirements of Roe and avoid the very broad exception of a woman’s “health” that in practice acts as a smokescreen for all elective abortions.

This law is the first of its kind in the United States, basing its restriction on abortion on fetal pain and not on arbritrary notion of fetal”viability.”  Without any surprise, pro-choice lobbyists and lawyers are going to challenge the law in court as unconstitutional because it sets the abortion limit prior to the prevalent judgment that “fetal viability” falls between 22 and 24 weeks and the law allegedly violates several judicial precedents post-Roe, such as the intentionally neglect to include rape, incest, and broad “health-related” clauses as valid exceptions to have an abortion.

Technically there are no judicial precedents for the pro-life Nebraska law because the newness of the standard that is the basis of the law. This will be a first-test case. There is reason to be optimistic that the U.S. Supreme Court—if the case makes it that far—might very well uphold the law. In the best case scenario, there are at least fives justices (the same five that upheld the ban on partial-birth abortion) who would seriously consider a persuasive case of state interest in preserving unborn human life given the considerable amount of medical evidence that unborn children are capable of feeling pain at 20 weeks during an abortion.

The full text of the new abortion law can be found here.

Coincidentally, the same day the Republican governor also signed a separate law requiring health care providers to screen women seeking abortions for possible physical or mental risks before and after the procedure with failure to comply resulting in fines up to $10,000. He has stated his intention to defend these pro-life victories against legal challenges if necessary.


5 Responses to Nebraska Outlaws Almost All Abortions At 20 Weeks!

  1. Donald R. McClarey says:

    Hurrah! The fetal pain aspect of the law is interesting. Death penalty statutes are routinely attacked on the grounds that the inmates executed suffer pain before death. It will be interesting to have some of the liberal justices attempting to explain why the pain that a convicted murderer suffers prior to execution is of constitutional significance, while the pain suffered by a child being dismember in the womb is not. Another plus in regard to the law is that it focuses public attention on the suffering of the victim of abortion.

  2. Eric Brown says:

    This is true, Don. This issue has shifted focus — if it makes it before the high court, the focus is on the child in the womb and not the autonomy of its mother.

    Though, I imagine that if it were to be argued against, it would require the same schizophrenia that justifies the law deeming the absence of brain activity and a heartbeat as being legally dead, while the presence of a heartbeat and brain activity of an unborn child cannot indicate life (though life obviously starts way prior to this point).

    This was very good legislation. I pray that it holds.

  3. restrainedradical says:

    Very interesting. I can imagine the case turning on the definition of pain. Without a scientific consensus, the court can revert to the easier viability distinction.

  4. c matt says:

    It’s even more schizophrenic than that – absence of brain activity and heart beat is not legally dead in most state statutes that I have seen – irreversible cessation of brain activity and heart beat, however, is. So even under the “legal death” standards, it is obvious there is no “death” from the moment of conception. Nothing “irreversible” about it, if you just leave the developing child alone.

    As to the mental gymnastics liberal justices would do to differentiate between pain to prisoners and pain to the unborn, it wouldn’t even require a metaphorical somersault – the former are persons, doncha know, and the latter are not.

    Now, the fact there are anti-animal cruelty laws that have been upheld, might force them to do a couple back-flips with a full twist. But I am confident they will do them, regardless of how utterly ridiculous they look.

  5. […] Nebraska banned abortion after 20 weeks based on the idea that the unborn child begins to feel pain at that point. It will be very interesting to see how this is dealt with by the courts. Under current law, viability provides an arbitrary but certain distinction. Pain is a difficult concept to define. Courts may find that pain is like life, i.e., there is no consensus on when it begins. It is scientifically accepted that animals, and presumably unborn children, don’t feel pain in the same way that we do. So courts may also find that even if there is some kind of pain, it is not of a type that can override a woman’s right to choose. I see this as an uphill battle. Nebraska Outlaws Almost All Abortions At 20 Weeks! […]

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