Wednesday, March 3, 2010

Mind-numbing Nebraska Legislation [Elizabeth]

Nebraska lawmakers are trying to pass the Abortion Pain Prevention Act — which would ban abortions after the 20th week of gestation — after more than 2,800 abortions were performed in the state in 2008, according to an article published on NewsNetNebraska.

The author of this legislation, Sen. Mike Flood, was recently quoted as saying if the fetus can feel pain, it’s worthy of the state’s protection.

I know that Flood is pro-life and is well-intentioned, but our ability to feel pain has no bearing on our humanity and, therefore, our right to protection under this nation’s laws.

If he’s merely introducing this bill in hopes of doing some good, then I applaud his efforts. But this bill rests haphazardly on faulty reasoning.

Let’s adopt Sen. Flood’s reasoning for a moment and say that pain should be the determining factor that transforms a fetus into a Fourteenth Amendment-protected human being. His own expert testified before the legislature that a developing fetus can likely feel pain at 20 weeks, if not before.

That “if not before” should surely prompt Sen. Flood to want to pinpoint the stage at which an unborn child develops the capacity for pain. Otherwise, if there’s a chance the fetus is enduring pain, it shouldn’t be forced to suffer dismemberment in its mother’s womb. We should err on the side of caution.

Also, under Flood’s reasoning, a patient anesthetized for surgery must temporarily fall out of the grace of state protection.

And, actually, as Scott Klusendorf pointed out in The Great Abortion Debate, the author of Principles of Anesthesiology asserts that the neurological structures necessary for pain are present in the fetus between 8 and 12 weeks gestation. Even pro-choice advocates have suggested giving a fetus the benefit of anesthesia during abortion because fetuses at 19 weeks gestation have been seen thrashing about violently during blood transfusions carried out in utero.

Under Nebraska’s current law, abortion is forbidden beyond a fetus’ viability, which they’ve determined is 24 weeks — with the exception of extenuating, grave physical risks to the mother. The new restriction would base the ban on pain rather than viability.

Francis Beckwith breaks down the problem with using viability as the point at which the state takes an interest in the life of the unborn in his book, Defending Life: A Moral and Legal Case Against Abortion Choice.

Beckwith points out that changing from nonviable to viable “does not impart to, or remove from, a being any property or properties that would change that being’s identity.”

He argues that, perhaps, the nonviability of the unborn should “lead one to have more rather than less concern for that being.”

Finally, he concludes that, “each of us, including the unborn, is nonviable in relation to his environment.” If you want to learn about your nonviability, stand naked on the North Pole, he suggests.

Still, Flood has a lot of common ground with pro-lifers. He’s trying to prohibit as many abortions as Roe v Wade will allow. Perhaps, if the legislation passes, it will reopen a dialogue on the topic. And that’s what needs to happen. Sooner or later, the debate always returns to the crux of the issue: “What is the unborn?”

Until legislators look honestly at that question and allow the evidence to lead them where it will, mothers — many of whom are unaware that their unborn children are whole and distinct human beings — will continue determining the worth of their unborn children during all nine months of pregnancy in most every state.


  1. I think you're probably being a bit unfair to Sen. Flood and other supporters of the bill.

    I don't know the details of the legislation or Sen. Flood's views, but I would assume he doesn't hold the view that the ability to feel pain makes something a valuable human being. Rather, he's just trying to pass incremental legislation that will prevent more abortions. And like the partial-birth abortion ban effort, the fetal pain bill could focus more attention on the unborn victim of abortion, and therefore help clarify people's thinking on this issue.

  2. This is a timely post. The Personhood Amendment campaigns in several states, including my own state of Maryland, are in full swing. I have discussed this topic with Scott before, but I think it might be a valuable and lively (maybe even fun) discussion. Would one of the bloggers be willing to post a position about Personhood to kick off the dialog?

  3. Elizabeth is not unreasonable to point out that bills of this nature may put in place an undesirable premise--namely, a functionalist view of human value. Sure, that won't always happen, but it's at least a possibility and one worth mentioning. Given the pervasive nature of the federal courts and the continued shelf life of Roe, it's unlikely that any bill can be passed (currently) that doesn't have the possibility of being misconstrued into an argument for functionalism. Thus, perhaps this is the best we can do right now, despite the possible dangers.

  4. Thanks for the thoughtful and informative post Scott. Even though I see and agree with your point about the premise being faulty, I can't help but think something is better than nothing, in terms of reducing the number of abortions via "incremental legislation" while at the same time increasing awareness and dialogue on the issue.

    On the other hand, I am concerned about the unintended consequences this premise could have on future legislation or the unintended message that is inadvertently communicated even if Sen. Flood does know better.

    I'm going to investigate and think about this a lot more. Thanks again.


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