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.