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Nebraska abortion debate focuses on fetal pain

LINCOLN, Neb. — A group of lawmakers is pushing to make Nebraska the first state to outlaw most abortions after 20 weeks of pregnancy based on the argument that the fetus might feel pain during the procedure.

Emboldened by the Supreme Court's 2007 decision upholding a ban on what abortion rights opponents call partial-birth abortions, in which a fetus is partially removed from the woman's womb and then destroyed, the Nebraska legislators are seeking to ban all late-term abortions except when the mother's life is threatened.

If the bill were to pass — and it's unclear it would — it would surely face a court challenge and could end up in front of the Supreme Court. Medical and legal experts testified Thursday for and against the bill before the Legislature's Judiciary Committee. It was unlikely the committee would vote on the bill on Thursday.

No other state has attempted to restrict abortions based on the pain a fetus might feel, said Mary Spaulding Balch, the legislative director for National Right to Life.

Six states — Arkansas, Georgia, Louisiana, Minnesota, Oklahoma and Utah — require that pregnant women be told an abortion could cause pain for the fetus, according to the National Conference of State Legislatures.

The bill, which was introduced by Speaker of the Legislature Mike Flood, bases its assertion that fetuses feel pain on the testimony of doctors, some of it given during a 2005 congressional hearing on the subject. It contends there is substantial evidence that by 20 weeks, fetuses seek to evade stimuli in a way that indicates they are experiencing pain.

But testimony from that hearing also suggests the medical community has not reached a consensus on fetal pain.

The American College of Obstetricians and Gynecologists says it knows of no legitimate evidence that shows a fetus can experience pain. It says a fetus' brain begins its final stage of development between the 20th and 40th weeks of pregnancy, and that certain hormones that develop in the final trimester also must be present for it to feel pain. It's not known exactly when those hormones are formed.

"I would hope Nebraska wouldn't become the new ground zero for this, but there appears to be a number of people in the Legislature that are pushing this issue," said Janet Crepps of the Center for Reproductive Rights, which opposes the legislation.

Crepps said Nebraska's proposed law would be unconstitutional and is a blatant attempt to get the abortion issue back before the Supreme Court, which established in its 1973 Roe v. Wade decision that a woman has the constitutional right to an abortion.

But supporters of the bill say the Supreme Court's ruling on what some call partial-birth abortion, in which the court for the first time upheld a ban on a specific type of procedure, opened the door to challenge other procedures.

They say the ruling acknowledged states have an interest in preserving fetal life. And they say the court discarded Roe v. Wade's viability requirement because the so-called partial-birth method could have been used to abort fetuses before they could survive outside the womb.

But the decision also distinguished the procedure from a more common abortion method used after 12 weeks of pregnancy. That was unaffected by the ruling. And ninety percent of all abortions occur in the first 12 weeks of pregnancy, and also were not affected.

More than 100 people attended the Judiciary Committee hearing about the bill on Thursday. Capitol police took the unusual step of setting up a metal detector outside the hearing room.

"This legislation has a very strong chance of provoking a constitutional challenge, but also of prevailing," said Teresa Collett, a law professor at the University of St. Thomas in Minneapolis, who testified at the behest of National Right to Life.

Caitlin Borgmann, a law professor at The City University of New York, disagreed.

"It bans all abortions at a fixed time of pregnancy before viability. That's a slippery slope," she said.

Questions were raised about whether the bill provided an adequate exception for the mother's health. In 2000, the Supreme Court struck down a Nebraska law banning so-called partial-birth abortions because it lacked an exception to preserve a woman's health.

Leslie Griffin, a professor at the University of Houston Law Center, testified that the measure was inadequate because it provides only a narrow exception for a woman's physical health and fails to address her mental health.

But Yakima, Wash., obstetrician Anita Showalter said a woman whose life is endangered by pregnancy can deliver the fetus as though it were full term. In some cases, the pre-term fetus can survive.

"When there's a medical situation that requires delivery, it doesn't have to be with intent to kill the living fetus," she said.