The Abortion Series: What’s The Matter with Nebraska?
So, unless you’ve lived under a rock for the last, oh 100 years or so, you know that the debate over abortion—and whether it should be legal, illegal, or restricted at various levels, etc.—is one that deeply divides societies all over the world. The most recent examples of the contenouisness of this issue being the laws recently passed in Nebraska and the ensuing uproar/celebration–depending on what side you’re on. The history of abortion in this country is long and involved, and in order to fully understand the current debate, we must understand what brought us to this place. I’m going to start with an examination of the recent laws in Nebraska, and work backward from there, as I want to thoroughly explore the legal reasoning behind our current abortion laws, and how they came to be that way.
The recently passed Nebraska laws places new restrictions on the availability of abortions in that State. The legislation signed into law by Governor Dave Heineman are actually two laws: LB (legislative bill) 594 known as the “Women’s Health Protection Act” and LB1103 known as the “Pain-Capable Unborn Child Protection Act“. LB594 is slightly more benign in that it merely requires more stringent screening requirements of patients before performing an abortion; namely evaluating and informing the patients of any risks, making sure the patient was not coerced in any way into having abortion, and making sure the patient is mentally sound. While my knee-jerk reaction to LB594 is to be slightly insulted because it seems to me that requiring mental health screenings of patients seeking abortions implies that anyone seeking an abortion must be mentally unsound, I also understand the medical (and legal) necessity of informed consent in order to protect everyone involved.
The other law however, LB 1103 the “Pain-Capable Unborn Child Protection Act”, is much more insidious and dangerous. Obsentively, the law was enacted on the basis of dubious and inconclusive scientific studies claiming that fetuses can feel pain as early as 20 weeks gestation, and thusly it would be cruel–even murderous–to abort the fetus. When a fetus can feel pain is debatable, and the science has yet to come up with any definitive answers. But this is what scientists know now, and is the general consensus of the scientific community, as described by Dr. David Rosen:
The first brain pathways associated with pain perception ‘are not complete before approximately 29 weeks of gestation’, so although fetuses develop brain wiring from about 23 weeks onwards, the connections are not there to enable them to experience pain.
Now, in Roe v. Wade the Supreme Court ruled that “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician” during the first trimester of pregnancy. This means that it is illegal for the State to proscribe a women’s right to an abortion in the first trimester. But the Court also held that the State, in promoting its interest in the health of the mother, may regulate abortion procedures in order to ensure women’s health and safety “subsequent to approximately the end of the first trimester”. Additionally, the State, in promoting its interest in the “potentiality of human life” may—if it so chooses—“ regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” The key word here is “viability” and that is the standard the Court applied:
With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.
And this is where the Nebraska laws run into trouble. While the “Womens Health Protection Act” has legal cover under Roe (the valid State interest in protecting the health and welfare of the mother, informed consent etc.) the ”Pain-Capable Unborn Child Protection Act”, however, is unlikely to be upheld by the Courts. The reason I, and many other observers of the courts, believe this is because precedent (known as stare decisis) is holy in the judicial system, and the precedent set–and repeatedly affirmed–by the Supreme Court is that the State only has a compelling interest in denying the service of abortion once the fetus has reached viability–the point at which a child can survive outside the womb. Viability is variable, but usually is around seven months (28 weeks) but may occur as early as 24 weeks. In most states, abortion is legal up to the 24th week. But the “Pain-Capable Unborn Child Act” would make all abortions performed during or after the 20th week illegal, when the Supreme Court specifically states that the State cannot proscribe abortion in the first 24 weeks (which was reaffirmed in the case of Planned Parenthood of Southeastern PA v. Casey). The science referenced in the Nebraska law is by no means definitive, and still being debated in the medical–and now political–community. However the current consensus is that a fetus does not have the necessary nerve and brain development to feel what we would recognize as pain, and therefore it is highly unlikely that the “Pain-Capable Unborn Child Act” will be upheld by the Supreme Court.