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NRL News
Page 28
February/March 2010
Volume 37
Issue 2-3

Nebraska Introduces Abortion Pain Prevention Act

By Dave Andrusko

The objective of pro-life legislation is to save as many lives as possible while simultaneously sensitizing the public in as many ways as possible to see why abortion is hideous. For 2010 Exhibit “A” is Nebraska’s Abortion Pain Prevention Act.

As NRL News goes to press, the measure, introduced by Speaker of the Legislature Mike Flood, is being heard in Judiciary Committee. It needs to be passed out of committee and go through three stages of debate prior to final passage. Speaker Flood designated LB 1103 his personal priority bill, assuring it will receive floor debate.

The genius of this measure, as was the case with the ban on partial-birth abortion, is that a legislator need not be a card-carrying member of our Movement or even sympathetic. All that is required, in this instance, is a willingness to acknowledge the scientifically conclusive fact that unborn children are capable of experiencing pain, certainly by 20 weeks after fertilization.

The Abortion Pain Prevention Act (LB1103) was introduced in late January. It would ban the killing of unborn babies capable of feeling pain absent a significant risk to the mother. Specifically, LB1103 prevents abortion after 20 weeks in the absence of such a significant risk to the mother.

Legislators thought carefully about how to construct the bill to prevent abortionists from rendering it toothless.

Nebraska law bans abortions past the age of viability except to “preserve the life or health of the mother.” The stay-out-of-jail card for abortionists has been that they are allowed to decide for themselves what constitutes a threat to the “health” of the mother.

The Supreme Court has gradually come to understand the illogic of giving a single abortionist, or a handful of abortionists, veto power. In 2000, dissenting in Stenberg v. Carhart (the case that struck down Nebraska’s ban on partial-birth abortion), Justice Anthony Kennedy wrote,

[T]he Court holds the ban on the D&X procedure fails because it does not include an exception permitting an abortionist to perform a D&X whenever he believes it will best preserve the health of the woman. …

[T]he Court awards each physician a veto power of the State’s judgment that the procedure should not be performed. Requiring Nebraska to defer to Dr. Carhart’s judgment is no different than forbidding Nebraska from enacting a ban at all; for it is now Dr. Leroy Carhart who sets abortion policy for the State of Nebraska, not the legislature or the people. Casey [a 1992 decision] does not give precedence to the views of a single physician or a group of physicians regarding the relative safety of a particular procedure.”

Subsequently, in the 2007 case of Gonzales v. Carhart, which upheld Congress’ ban on partial-birth abortion, Kennedy wrote,

The … premise, that the state, from the inception of pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child, cannot be set at naught by interpreting Casey’s requirement of a health exception so it becomes tantamount to allowing a doctor to choose the abortion method he or she might prefer.”

Under LB1103, after the 20-week point, an abortionist must appeal to an objective standard if he says a pregnancy is a threat to a woman’s health, not to what he prefers to do!

Physicians who specialize in high-risk pregnancies, as well as the medical textbooks that discuss these risks, are in agreement. In virtually all instances where a pregnant woman comes in with a medical emergency, the recommended course of action is to stabilize her condition. Aborting the child does not help the mother. In fact the trauma of an abortion greatly increases the chance that the mother will die!

Because unborn children are unable to articulate their pain, you prove their capacity for perceiving pain indirectly by showing (a) they have the hardware and (b) that they actually respond to painful stimuli.

Over the years National Right to Life News has documented the evidence that at a point no later than 20 weeks, all the physical structures necessary to experience pain have developed in an unborn child.

Dr. Jean Wright, an anesthesiologist specializing in Pediatric Critical Care Medicine, offered an illuminating metaphor in congressional testimony.

[A]n unborn fetus after 20 weeks of gestation has all the prerequisite anatomy, physiology, hormones, neurotransmitters, and electrical current to close the loop and create the conditions needed to perceive pain. In a fashion similar to explaining the electrical wiring to a new house, we would explain that the circuit is complete from skin to brain and back.”

Also, in the words of Dr. Richard T.F. Schmidt, past president of the American College of Obstetricians and Gynecologists, “It can be clearly demonstrated that fetuses seek to evade certain stimuli in a manner which in an infant or an adult would be interpreted as a reaction to pain.”

In addition, increases in their stress hormones have been measured when unborn children receive a painful stimulus, as Dr. Kanwaljeet J.S. Anand explained in an expert report submitted to a Federal District Court that was reviewing the congressional ban on partial-birth abortions.

Critics inevitably refer to a trumped up study, “Fetal Pain: A Systematic Multidisciplinary Review of the Evidence,” published in the August 24, 2005, edition of the Journal of the American Medical Association. But the study is riddled with problems (see

To name just three: (1) Its authors are not all unbiased scientists; some are pro-abortion activists. (2) Their conclusions, which reflect their political agenda, are disputed by experts with far more extensive credentials in pain research than any of the authors. (3) A similar review published in September 1999 in the British Journal of Obstetrics and Gynaecology concluded, “Given the anatomical evidence, it is possible that the fetus can feel pain from 20 weeks and is caused distress by interventions from as early as 15 or 16 weeks.”

We will have more about the Abortion Pain Prevention Act in the March issue of NRL News and, as events warrant, in Today’s News & Views.