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LB 1103: A Case of "First
Impression" Part Two of Three By Dave Andrusko The headline found on many iterations of the same Associated Press story read, "Strict new Neb. abortion law faces long legal road." That new Nebraska law, of course, is LB 1103, the "Pain-Capable Unborn Child Protection Act," which continues to generate lots and lots of media coverage. The usual pro-abortion legal suspects (e.g. Center for Reproductive Rights) are hinting they may challenge the law in court. That might be on behalf of, or in addition to, LeRoy Carhart, who specializes in second and third trimester abortions. Carhart was a party to two abortion cases that were decided by the United States Supreme Court. It is, of course, quite true that it might be a while before this law is in force, should a judge slap an injunction on LB1103. But if pro-lifers worried about judges trying to tie our legislation into the legal equivalent of pretzels, we'd never pass anything. As a way of updating you on what's happened in the past 72 hours, let me talk about two pro-abortion complaints. First, we have, are, and will continue to hear the same, tired old story--that there is no medical evidence that unborn children can experience pain at 20 weeks. In fact, there is lots. (Go to www.doctorsonfetalpain.com.) What few people know is that the pain the unborn child experiences could even be worse! There is this memorable quote from a 1996 study. (Yes, the evidence goes back that far, and even earlier!) It's a little technical but the conclusion is not.
"The last pathways in the
nociceptive system to be formed
are the inhibitory descending
serotonin neurones, which can
block the ascending pathways.
These do not form until after
birth, raising the possibility
that the fetus may actually be
more sensitive to noxious
stimuli than the older child…."
The second major pro-abortion comeback is that the Court has never said fetal pain is a reason to limit abortion. Exactly! LB 1103 will present the justices with evidence they have never before considered. Pro-abortionists in1973 would have never dismantled the protective abortion laws of all 50 states had not the Court previously considered new arguments routinely, one after another after another. The hypocrisy of complaining about us bringing new issues to the Court is hard to miss. And just think of all that is new since 1973 which directly and indirectly speaks to this law. All point to the unborn child as a patient, as a marvelous model of developmental ingenuity, and as a fellow member of the human family whose life should not be brutally ended in a searing pain. To name just four--the widespread use of Neonatal Intensive Care Units, the reality of fetal surgery, the arrival of fetal medicine as a specialty, and the gradual dawning on the medical profession that it is not just newborns, or babies born prematurely who can and do experience pain, but also babies in utero. Worth remembering as this case moves along is that there are expressions both in the case that rejected a state ban on partial-birth abortions (Stenberg v. Carhart) and the case that upheld the federal ban on partial-birth abortion (Gonzales v. Carhart) that some justices "get it." For example, there is this from the dissent in the case overturning Nebraska's ban, referring to D&E abortions-- "The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn limb from limb." Nebraska's new law, premised upon medical evidence that the unborn child at 20 weeks can experience pain, also raises a quintessential first-principle issue for the medical profession. Apropos that there is also this from Stenberg v. Carhart: "[In the 1992 Casey decision] We held it was inappropriate for the Judicial Branch to provide an exhaustive list of state interests implicated by abortion…. Casey is premised on the States having an important constitutional role in defining their interests in the abortion debate. It is only with this principle in mind that Nebraska's interests can be given proper weight. . . . States also have an interest in forbidding medical procedures which, in the State's reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus. . . . 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." (Emphasis added.) As NRLC State Legislative Director Mary Spaulding Balch has said so eloquently, the "Pain-Capable Unborn Child Protection Act" is a case of "first impression" for the Supreme Court. Justices have a chance to think and rethink, ponder and decide whether this is what a civilized society would allow. Please send your comments to daveandrusko@gmail.com. |