News Flash: Nebraskan Law Restricts Abortion Based on Fetal Pain

There have been controversial and endless debates over a women’s right to choose whether or not to have an abortion. Following the 1973 United States Supreme Court decision of Roe v. Wade, women, throughout the United Sates, gained the right to obtain an abortion. Over time, states have passed various laws that have restricted women’s right to choose. Monica Davey, in her article “Nebraska Law Sets Limits on Abortion,” discusses the “Pain-Capable Unborn Child Protection Act,” an anti-abortion law that was recently passed in Nebraska. This is the first time that a law, regarding abortion, has been based on the fetuses’ ability to perceive pain. This law, which restricts women from having an abortion twenty weeks after gestation, separates Nebraska from all other state. It is time for the federal government to develop a comprehensive act that standardizes abortion in all fifty states. The laws must be clear and preempt states from placing excessive restrictions on abortions. The goal behind this federal amendment should be to remove the hurdles, which many pregnant women who seek abortion continue to confront.

Governor Dave Heineman, of Nebraska, signed a law on Tuesday, April 13th, that banned abortions after twenty weeks of conception. Nebraska’s state unicameral legislature passed this law with a vote of 44 to 5. Nebraska legislature purported that a fetus can feel pain after twenty weeks of gestation. This is the first law in the United States that restricts late-term abortions on the basis of fetal pain. The law further states that any physician who performs an abortion after twenty-weeks of conception has committed a felony. Nebraska’s quick action to enact this law is reflective of a fear that it may become the next “late-term abortion capital of the Midwest” (Davey A16). Dr. George R. Tiller, a prominent late-term abortion provider, was killed in Wichita, Kansas, on May 31, 2009. It is ironic to note that Scott Roeder, a pro-life advocate, murdered Dr. Tiller. How can a pro-life advocate justify murdering an individual? Following Dr. Tiller’s death, a friend of his, Dr. LeRoy H. Carhart, decided that he would perform late-term abortions at his clinic in Bellevue, Nebraska. Dr. Carhart’s decision was the impetus that caused Nebraskan lawmakers to hastily past this recent abortion restriction.



The previous law that was in place in Nebraska, and currently remains in many other states, banned abortions after the fetus reached viability. While this has been determined on an individual basis, twenty-two weeks has been the baseline criteria. Nebraska is unique in that it forbids abortion after twenty weeks because of a presumption that a fetus can then feel pain. The exception to Nebraska’s newly passed law is the case of a medical emergency. If there is a concern that a pregnancy will result in the death or harm a vital bodily function, an abortion can be performed. This law makes Nebraska’s abortion policy different and more restrictive than other states. Thirty-eight states have restrictions on late term abortions but none as early as twenty weeks.

Numerous abortion proponents are outraged by this new legislation. Nancy Northup, president of Center for Reproductive Rights, states that they are looking into all possibly routes to appeal the recent law passed in Nebraska. Ms. Northup explains that, over time, state legislation has placed varied restrictions on abortion that weakened the decision of Roe v. Wade. Ms. Northup further clarifies that the law that was recently passed in Nebraska was of a whole different magnitude. “If some of these other anti-abortion bills have been chipping away at Roe v. Wade, this takes an ax to it” (Davey A16). “But abortion opponents say a 2007 U.S. Supreme Court ruling upholding a federal ban on certain late-term abortions opens the door for such legislation because it suggests states have an interest in protecting fetuses. They also say the bill makes sense given what they say is new scientific evidence that fetuses feel pain” (Jenkins 1). The American College of Obstetricians and Gynecologist stated, during the trial, that it knows “no legitimate scientific information that supports the statement that a fetus experiences pain” (Harris, Khan, Vogue 1). The controversy over when/if a fetus feels pain remains unclear. Should medical and/or legal experts make this decision? Is this a question that anyone can answer with absolute certainty? It has been hypothesized that Nebraska hopes the current, more conservative Supreme Court will review their recent legislation. Pro-lifers believe that these judges would further restrict Roe v. Wade based on the presumption that fetuses can perceive pain after twenty weeks gestation. Whether or not a fetus is able to perceive pain at this point has not been scientifically established. The Supreme Court needs to both uphold Roe v. Wade and establish federal guidelines that ensure similar freedoms within all states.

Igna Muscio offers her thoughts regarding abortion within her article, “Abortion, Vacuum Cleaners, and the Power Within.” After Ms. Muscio underwent three abortions, she advocates against clinical abortions. She believes that women should look for alternative, organic abortions. Ms. Muscio would most probably oppose the recent Nebraskan law. Ms. Muscio supports a woman’s right to choose for or against abortion. She would though argue that individuals should search for alternative means of late-term abortions that move away from western medicine. “The squabble between pro-lifers and pro-choicers severs only to keep our eyes off the target: patriarchal society” (Listen up 117). Legislation needs to be passed that sets the same standards for all states and allows individuals to make their own, educated choices.

Allison Crew’s article, “And So I chose,” expands on her decision to be pro-woman and pro-choice. Ms. Crews believes that a woman should have the right to choose to have or not to have an abortion and be supported independent of her choice. Ms. Crew would oppose Nebraska’s new, more restrictive policy on abortion. Ms. Crew discusses that most second wave feminists do not remember the struggle of previous generations to obtain reproductive choice. “I doubt many of us, conceived after Roe v. Wade became law, remember a time when birth control pills had yet to be invented and diaphragms and condoms were not readily available to unmarried women. A time when a woman faced with an unplanned pregnancy could either give birth, or risk mutilation of her body and possibly death” (Listen Up 143). Individuals need to remember why certain rights were established and ensure that they are upheld.

The Supreme Court decision of Roe v. Wade left loopholes open that allowed states to establish restrictions regarding abortion. The Supreme Court needs to establish federal guidelines that resolve ambiguity and ensure women’s right to choose. No legislation is suggesting that a woman have or not have an abortion. A woman may choose to have an abortion because of an unplanned pregnancy, rape, positive amniocentesis, and/or exposure to harmful toxins. Similarly, no legislation should mandate that a physician perform or not perform an abortion. Some physicians have moral and/or religious beliefs that result in their decision not to perform abortions. The time for federal legislation to ensure a women’s right to choose and uphold Roe v. Wade is now.