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NRL News
Page 1
April/May 2010
Volume 37
Issue 4-5

Nebraska Passes Landmark Pain-Capable Unborn Child Protection Act

By Dave Andrusko

Combining years of planning, enthusiastic grassroots support, the backing of key legislators, and the invaluable help of National Right to Life, Nebraska has passed the landmark “Pain-Capable Unborn Child Protection Act.” Pro-life Gov. Dave Heineman signed LB 1103 into law on April 13 following passage by the unicameral Nebraska legislature on a vote of 44-5.

NRLC State Legislative Director Mary Spaulding Balch summarized the thrust of the law in just nine words: “You don’t kill unborn children capable of feeling pain.” The law, basing its conclusion on an enormous body of medical research, sets the demarcation at which the unborn child can feel pain at 20 weeks.

The law does not go into effect until October 15. Pro-abortion organizations such as the Center for Reproductive Rights, have grumbled about possibly challenging the law in court. If such lawsuit were brought, it might be on behalf of, or in addition to, LeRoy Carhart, who specializes second and third trimester abortions. Carhart was a party to two abortion cases that were decided by the United States Supreme Court.

LB 1103 bans abortion except in cases of medical emergency (to prevent the death of the mother or to prevent severe and long lasting physical damage to a major bodily organ), or to increase the probability of a live birth.

Balch noted the unintentional (and ugly) irony of a quote from Nancy Northrup, president of the Center for Reproductive Rights. Northrup told the Associated Press, “Courts have been chipping away at abortion rights...this would be like taking a huge hacksaw to the rights.”

You don’t need coursework in fetal anatomy to know that babies this mature will suffer excruciating pain as they are being torn apart,” Balch said. “People who know nothing about abortion ‘get it.’”

Asked what are some of the key issues LB1103 will raise in court, Balch listed two.

This law (1) “acknowledges that states have an interest in unborn children and an interest in protecting them,” she said. (2) The law also “closes a major loophole in state laws.”

In the 37 years since the Supreme Court’s Roe v. Wade decision, technological improvements in fetal care have moved the point of viability back from the third trimester to 22-24 weeks. But alongside those breakthroughs “there’s been an avalanche of new information about the unborn child, including demonstrating that she is pain-capable at 20 weeks,” Balch told NRL News.

Viability is one line,” Balch said. “The state of Nebraska is saying there is another one: the point at which an unborn child is pain-sensitive.”

And there was plenty of expert testimony made available to legislators, said Julie Schmit-Albin, executive director of Nebraska Right to Life. “Experts from specialists in anesthesiology and maternal/fetal health testified that the unborn child feels pain by 20 weeks gestation at LB 1103’s committee hearing on February 25, she said.

What we didn’t know in 1973 when Roe v. Wade was foisted upon the nation we know now because of such technological advances as in-utero surgery and 4-D ultrasound,” said Julie Schmit-Albin, executive director of Nebraska Right to Life.

Opponents repeated the tired old misnomer that there is no medical evidence that unborn children can experience pain at 20 weeks. In fact, there is much.

What few people know is that the pain the unborn child experiences could even be worse! (See Glover and Fisk, Fetal pain: implications for research and practice, British Journal of Obstetrics and Gynaecology; September 1999, Vol.106, pp. 881-886.) For much more evidence that the unborn child is pain-capable, go to

Balch explained that pro-abortionists count on media ignorance regarding what the Supreme Court has actually said. “The Justices have never addressed the issue of an unborn child’s pain,” Balch said. “If/when they do it would be a case of ‘first impression,’ as lawyers put it.”

She added, “We look forward to debating that in other state legislatures and in the courts.”

Balch praised the work of the Nebraska legislature and particularly Speaker of the Legislature Mike Flood, who introduced the measure. “The bill, and unborn children, could not have had a better advocate,” she said.

Balch offered high praise for Schmit-Albin. “Julie did a wonderful job of shepherding the bill through the legislature,” Balch said.

When opponents pushed to weaken the bill, Balch said, “Julie pushed back.” She was determined not to have a bill “that was amended into meaninglessness,” Balch added, “and as a result Julie helped produce a groundbreaking bill.”