Wednesday, April 7, 2010

Fetal Pain Bill in Nebraska [Jay Watts]

ABC News reports (here and here) that a fetal pain bill is advancing in Nebraska that would set the legal limit for abortions in that state at 20 weeks. The bill proposes that after 20 weeks the fetus is capable of suffering pain in the abortion process and therefore the state has a legitimate interest in restricting abortion to protect unborn human life from unnecessary cruelty.

The bill's sponsor, Nebraska state Senator Mike Flood recognizes that this bill challenges current abortion legal language as established by the Supreme Court. The current standard for where the state can have a legal interest in protecting the child against the right to privacy of the mother is viability. To be clear, it is not necessary for a state to protect a child at viability. States are just restricted from placing any “undue burden,” to use Planned Parenthood v. Casey language, on any woman's right to an abortion in any manner prior to that point. The Nebraska bill does not use viability as a standard at all and introduces the unborn child's ability to feel pain as a new consideration. That directly challenges the current standard.

The second significant aspect of the bill is a more narrowly defined understanding of the health exception. Doe v. Bolton, Roe's companion decision, so broadly defined the standard for health exceptions that it rendered the limit of viability essentially toothless. Any and all considerations of a woman's health could be factored in to justify going beyond viability limits established by the states including the mental health of the mother. That means that as long as a woman can find a doctor willing to perform an abortion for mental health considerations, for instance the mental stress endured by having a child at a time in her life that she was not planning to be a mother, then abortion is legally protected as a right through all nine months of pregnancy by the federal government. This new Nebraska bill would redefine health restrictions to save the life of the mother or "avert serious risk of substantial and irreversible physical impairment of a major bodily function." That represents a dramatic shift from the standard set in Doe.

The idea behind pursuing a law that blatantly challenges the language of the Supreme Court decisions on abortion, a contention opponents of the bill characterize as intentionally advancing unconstitutional legislation, is to pursue the opportunity to submit new medical and scientific evidence to the highest court pertaining to the nature of early human life. This is a legitimate legal tactic as the Supreme Court has consistently ruled that it takes no position on the identity of the unborn as "persons" even characterizing the question itself in some pretty bizarre language. Justice Sandra Day O'Connor's famously odd passage from Planned Parenthood v. Casey illustrates this point perfectly:

“At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

If the Supreme Court rejects the view of the personhood of unborn humans (which disqualifies the unborn from equal protection under the 14th Amendment) based on the previously and repeatedly defended position that good people disagree on the identity of the unborn, then offering substantive scientific evidence would be a legitimate challenge. The proposed restriction is not based on differing personal opinions on the “mystery of human life” but on proposed facts of the developmental capabilities of unborn humans after the 20 week threshold. I have not seen the evidence that they will be using to defend their position, but stipulating that it is solid then the tactic itself is legitimate.

For the opponents of the bill that cry foul based on the claim that Planned Parenthood v. Casey rejected any hard line other than viability and prevents any state from using any other standard, they might want to read Casey again. Casey's language justifies viability as the only legitimate line based on the claim that all other lines are arbitrary and not empirical in nature. If one is submitting an argument that they have an equally non-arbitrary and empirically established point at which to draw a line then they could have a point that is worthy of review by the courts. In my opinion, it is not the slam dunk some of the bill's opponents seem to characterize it as.

Let me state clearly, abortion is wrong even if the unborn feel absolutely no pain at all and restrictions on abortion ought to be pursued because of the immorality of destroying another human life without extreme justification. So when I say that I think this bill holds some potentially intriguing challenges to the status quo as it pertains to abortion language, I am not saying I think this bill adequately addresses the full moral offense abortion. It is woefully deficient if that is the goal.

But why would I suppose that this was the goal? The incremental approach seeks to find basic points of agreement with a culture that has clearly lost its moral moorings in relation to our treatment of nascent human life. I do not read this proposed legislation as declaring that abortion is wrong when and only when it causes pain to the unborn child and other cases of abortion ought to proceed unimpeded by law. Rather I read it more charitably asking two simple questions. Can't we at least agree that tearing an unborn human being to pieces while it is capable of experiencing the agony of that gruesome death is wrong and that viability is not the end all be all of our legal limits to restrict abortion? Can't we at least agree that the current definition of health exceptions is so broad as to render them not “exceptions” in any meaningful sense of that word? That is also asking a broader question. Can't we all agree that this is worth looking at again because the price for being wrong on this one is incalculably high? At least we can attempt to put to rest Justice Sotomayor's assertion that abortion is “settled law.”

This post represents my initial reaction to the articles I have linked above and should not be taken as an exhaustive endorsement. I have not read the bill in question and am merely responding to the very basic points made from both sides in the articles. I for one am interested to see how this plays out and will keep an eye on it.

HT: Drudge Report


  1. Good post, Jay. I'm in agreement with you, that a bill like this is not an endorsement of abortions on babies that don't feel pain yet. It's simply graded absolutism: going as far as we can go, as soon as we can get there, and then taking the next step. I hope this bill will cause a similar cultural debate that the Partial-Birth Abortion Ban did, focusing on what abortion procedures do to unborn children.

  2. Are you and Elizabeth in agreement or disagreement on this issue. Her post seems to speak rather negatively of the proposed law, whereas yours speaks quite positively of it. Is this bill a matter of disagreement between the staff of LTI? Could you address this? Thanks!

  3. Hey Jason!

    I don't think we disagree after rereading her post. To be honest, I had forgotten her post because I have been so busy lately.

    I think there are core agreements between what Elizabeth said and what I said. We both affirm that the argument that abortion is wrong because the unborn feel pain in the procedure fails to address the proper moral offense of abortion. We both affirm that abortion is wrong whether the unborn experience pain or not.

    I think Elizabeth is reacting specifically to that claim, and so she rightly has a negative view. I was more interested in the two direct attacks upon current abortion legal language, a point that was not central to Elizabeth's post.

    I was careful to say that I do not endorse this legislation simply because I do not know enough about it to champion it or condemn it at this point.

    So no, there is no disagreement within LTI on this bill. We just both came at it and focused on two different aspects. I am equally negative of mistaken claims as to why abortion is wrong. I am optimistic people are finding legitimate legal challenges to Supreme Court language as it pertains to abortion.

    The interesting aspect of the fetal pain argument was that it represented a scientific and empirical counter "line" to viability and so cannot be dismissed on its face. The "health exception" aspect just flat out flies in the face of the current deplorable understanding of health exceptions, which I think we both agree is a joke.

    And it is gets more discussion of the unborn and the gruesome practice of ripping them to pieces then it is a good thing, which I think Elizabeth alluded to as well when she said she commends Sen. Flood for trying.

    I see your point though, and it is kind of funny to see us take it from two completely different POV's. I can tell you that although we are usually careful not to air our disagreements in public, we do have them from time to time. But Scott is the boss so he always wins. ;-)

    God bless,

  4. Concerning whether substantial medical evidence indicates unborn children can feel pain 20 weeks post-fertilization, check out


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