A Chance for the Supreme Court to Revisit Abortion

By Dave Andrusko

In life there are not that many “aha!” moments, but when they come, they can practically snap your head back. My best guess is, as word of Nebraska’s groundbreaking “Pain-Capable Unborn Child Prevention Act” penetrates the public’s consciousness, lots of people will be stunned.

We’ve written a lot about LB 1103, but for good reason. This measure, passed 44-5, is (in that often times overworked word) historic. Why?

For one thing (to use an admittedly overworked phrase), it gives the Supreme Court another bite at the apple. In excruciatingly slow fashion, ever since the 1992 Casey v. Planned Parenthood, the Court has begun to take seriously what it had said along the way—that states have a “legitimate interest” in “potential life.” If so, that surely says to state legislators, “Give us commonsense legislation to consider.”

What could make more sense than drawing the line at ripping apart unborn babies capable of experiencing pain?

For another thing (and related), the “Pain-Capable Unborn Child Prevention Act” says to the Court, this is not 1973! The unborn child—essentially invisible 37 years ago—is now captured in ultrasound photographs attached to millions of refrigerators. What you see is not a “thing” or a “blob of tissue,” but a vibrant, active member of the human community.

Likewise, in 1973 newborns were pricked with needles. Why bother anesthetizing them when they don’t really “feel pain?” But then as now, these children demonstrated by their actions (trying to get away) and by heightened stress hormones that they’re hurting. Now we know it and act accordingly.

This is how we gauge pain in newborns and adults. Guess what?

As evidenced by in utero surgery, the unborn child also recoils from painful stimulus and shows an increased response in certain stress hormones. The evidence is clear, regardless of what pro-abortionists say: by 20 weeks the unborn child can experience pain.

Just one other point worth mentioning—there is a paper trail suggesting that at least to at some extent, Justice Kennedy “gets it.”

In Gonzales v. Carhart, the decision upholding the federal ban on partial-birth abortions, Kennedy wrote a number of interesting things. Let me mention just one: that “it is inappropriate for the Judicial Branch to provide an exhaustive list of state interests implicated by abortion.” Okay, might not the state of Nebraska have a “state interest” in preventing abortions performed on babies capable of experiencing pain?

Be sure to read Today’s News & Views today and everyday.