Nebraska Outlaws Late Term Abortions Because Fetuses Feel Pain
April 15, 2010
Wesley Smith
Nebraska has outlawed abortions after 20 weeks on the grounds that by then, the fetus has developed the structures necessary to feel pain. From the story:
Gov. Dave Heineman of Nebraska signed a law on Tuesday banning most abortions 20 weeks after conception or later on the theory that a fetus, by that stage in pregnancy, has the capacity to feel pain. The law, which appears nearly certain to set off legal and scientific debates, is the first in the nation to restrict abortions on the basis of fetal pain.
Abortion opponents praised the law and said it was justified by medical evidence gained since Roe v. Wade was decided in 1973. Abortion rights advocates said that the measure was unconstitutional, and that the motive behind it was to set off a challenge to legalized abortion before the United States Supreme Court.
But this means some women will die for wont of an abortion! Nope:
The new law grants exceptions only in cases of medical emergency, the pregnant woman’s imminent death, or a serious risk of “substantial and irreversible physical impairment of a major bodily function,” a provision experts interpreted as an effort to exclude an exception based on a woman’s mental health.
I am not an expert in abortion jurisprudence. But, it has always seemed to me that viability is an ethical line that should be the outer limit for permitting abortion (except in extreme circumstances). Once that point is reached, the biological nonsense many use to support abortion rights—that a fetus isn’t “human”—becomes entirely unsupportable. Indeed, the law has never said that an unwilling mother has a right to a dead fetus, but that she has the right to control her body. It seems to me, that if she doesn’t want to be pregnant anymore and the baby is viable, the child should be delivered, not killed, and then put up for adoption if she doesn’t wish to raise her child. That would permit her to terminate her pregnancy—a constitutional right, according to the Supreme Court—and save the baby’s life at the same time.
So, Nebraska’s new law seems entirely reasonable to me, particularly since 20 weeks is potentially (barely) within the potential viability time period. And if fetuses can feel the pain of being torn apart in utero or cooked in saline—I don’t know the science of fetal pain—that is even more reason to protect later term fetuses from an agonizing destruction.
No other right is absolute—even those expressly stated in the U.S. Constitution and not based on “penumbras.” Abortion shouldn’t be either.
Wesley J. Smith is an award-winning author, a senior fellow in human rights and bioethics for the Discovery Institute, and consults with the International Task Force on Euthanasia and Assisted Suicide. His Secondhand Smoke is one of the First Things blogs.
Comments:
4.14.2010 | 10:17pm
Bret Lythgoe says:
I commend Wesley Smith on an important, and informative article. the only issue that I would point out is, and Mr. Smith may be in agreement, is that viabilty is a notion, totally logically unjustified as being a basis for determining when abortions can occur. Just because the fetus, at viability, is now cabable of living outside its mother's body, does not entail that, prior to this, it was nonhuman, and therefore could be killed. Modern human biology has clearly discovered that, at conception, the being formed, is human. So, this newly formed creature, is a human being, at its earliest stage of development, and therefore, deserves protection under the law.
4.15.2010 | 12:38am
Pr. Dan Biles says:
If this gets tested in court, and it is proven that fetuses can feel pain, this may undercut all the arguments for abortion on the grounds that the fetus is not a person. It may be the start of a revolution in dismantling the abortion practice in the USA. Pro-abortion forces may want to think twice before taking this to court...
4.15.2010 | 1:12am
Jim says:
"Once that point [of viability] is reached, the biological nonsense many use to support abortion rights—that a fetus isn’t “human”—becomes entirely unsupportable."
In fact, as Bret mentions, the biological nonsense many use to support abortion--that a fetus isn't "human"--is entirely unsupportable before viability as well.
Not to mention that in plenty of environments a 9-month baby in the womb could be considered "non-viable". No newborn can "survive on its own". Most readers here, I imagine, would know that.
Actually, I feel like must be missing something because I find it hard to believe that the above would be news to Mr. Smith, of all people.
In fact, as Bret mentions, the biological nonsense many use to support abortion--that a fetus isn't "human"--is entirely unsupportable before viability as well.
Not to mention that in plenty of environments a 9-month baby in the womb could be considered "non-viable". No newborn can "survive on its own". Most readers here, I imagine, would know that.
Actually, I feel like must be missing something because I find it hard to believe that the above would be news to Mr. Smith, of all people.
4.15.2010 | 4:55am
Ian says:
Can Wesley please clarify his views on this? If he is saying that it is better to have this 20 week restriction than no restriction (but would prefer a ban on all abortions save where the mother's life is at risk) that is one thing. If he means that abortion in the early stages of pregnancy - up to 20 weeks - should be lawful that is another. I (and I expect many others) shall certainly be disappointed, given the fantastic work Wesley does regarding opposing euthanasia, if the latter is his view.
4.15.2010 | 8:56am
Susan Karina, OP says:
Readers may be interested to know that in 2006 legislation was introduced, the Unborn Child Pain Awareness Act. http://thomas.loc.gov/cgi-bin/bdquery/z?d109:h.r.6099: I believe it was reintroduced in 2007. I don't know the status since then.
The act would not have limited access to abortion, but as a matter of assuring informed consent, would have made the mother aware that evidence suggests a fetus in the womb can sense pain. Furthermore, the mother could opt for anesthesia for the fetus prior to the procedure.
The act would not have limited access to abortion, but as a matter of assuring informed consent, would have made the mother aware that evidence suggests a fetus in the womb can sense pain. Furthermore, the mother could opt for anesthesia for the fetus prior to the procedure.
4.15.2010 | 9:30am
michael Currie says:
Years ago Magda Denes wrote a book defending abortion. In it she made one of the most astute observations that I have ever heard regarding the logic of viability. She said that Killing a fetus in the womb because it is not viable is akin to killing a man in his bathtub because he would drown in the middle of the ocean. Her point(forgive me for stating the obvious)was that the fetus is viable in the womb, where it belongs just as we are only viable in environments that support our lives.
4.15.2010 | 9:39am
edward alleyn says:
I agree with sanpietrini. And the rationale for the new Nebraska law is specious.
4.15.2010 | 9:47am
Andrzej says:
I believe that when Mr Smith states that "viability is an ethical line that should be the outer limit for permitting abortion" he is talking within the context of the existing law.
4.15.2010 | 9:50am
Grace McLoughlin says:
It's a step in the right direction, but it is well for us to remember that in accepting the premise for abortion, we are also accepting the premise that life, itself, is not sacred.
4.15.2010 | 11:45am
JDD says:
There are a multitude of fundamental flaws with the viability threshold argument:
I have been in a disagreement before with an abortion supporter who fell back on the viability threshold argument in order to defend abortions before this threshold. I believe the threshold this person was defending was 22 or 24 weeks or so.
Which highlights the beginning of the problem - well, which was it - 22 or 24 weeks? I can't quite remember and neither I'll bet could that person. Well, does it matter? If at 22 weeks you're a human being, but at 21 weeks you're not, then of course it matters.
What if you're viable, based on available technology, in one country - but not in another. Are you then a human being in one country - but not in another? Who makes that determination?
But worst of all, what if, in the year 1990, the viability-outside-the-womb threshold was 26 weeks, but by the year 2000 the threshold improved to 22 weeks; then are the abortions performed during that time period to be "re-understood" now as "mistakes" (murders), with appropriate apologies?
As technology develops and the threshold of "viability" gets earlier and earlier, then what does it mean that we've used this line to determine when it is acceptable to abort? It means nothing less than that my status as a human being has been determined by in what technological era I was conceived.
I have been in a disagreement before with an abortion supporter who fell back on the viability threshold argument in order to defend abortions before this threshold. I believe the threshold this person was defending was 22 or 24 weeks or so.
Which highlights the beginning of the problem - well, which was it - 22 or 24 weeks? I can't quite remember and neither I'll bet could that person. Well, does it matter? If at 22 weeks you're a human being, but at 21 weeks you're not, then of course it matters.
What if you're viable, based on available technology, in one country - but not in another. Are you then a human being in one country - but not in another? Who makes that determination?
But worst of all, what if, in the year 1990, the viability-outside-the-womb threshold was 26 weeks, but by the year 2000 the threshold improved to 22 weeks; then are the abortions performed during that time period to be "re-understood" now as "mistakes" (murders), with appropriate apologies?
As technology develops and the threshold of "viability" gets earlier and earlier, then what does it mean that we've used this line to determine when it is acceptable to abort? It means nothing less than that my status as a human being has been determined by in what technological era I was conceived.
4.15.2010 | 1:07pm
Citizen Jerry says:
I'm thankful there are enough rational senators in our state legislature to pass this bill. Of course, before the governor's signature was dry on the paper, opponents threatened to tie it up in 100 years of litigation.
Thankfully, this bill is a small victory in the battle against the culture of death -- a battle that will be ongoing until the end of the age of man. Ora pro nobis.
Thankfully, this bill is a small victory in the battle against the culture of death -- a battle that will be ongoing until the end of the age of man. Ora pro nobis.
4.15.2010 | 1:19pm
senex says:
When theory confronts practicality, we should not reject the practical, less than perfect, solution, just because it is not theoretically perfect. In this respect, I concur with Mr. Smith.
4.15.2010 | 3:07pm
ria says:
Interesting logic here. So, we should numb fetuses before the procedure?
4.15.2010 | 3:27pm
Baillie says:
"It seems to me, that if she doesn’t want to be pregnant anymore and the baby is viable, the child should be delivered, not killed, and then put up for adoption if she doesn’t wish to raise her child."
That has always been my opinion.
It would seem that the frothing-mouth sector of the pro-abortion community truly has a lust to kill. Possibly their circle of ideology overlaps that of the Peter Singer euthanasia-enthusiasts.
That has always been my opinion.
It would seem that the frothing-mouth sector of the pro-abortion community truly has a lust to kill. Possibly their circle of ideology overlaps that of the Peter Singer euthanasia-enthusiasts.
4.16.2010 | 10:46pm
Wesley J. Smith says:
Jim: I called it biological nonsense. That means it isn't news to me. Indeed, if you read my work on embryonic stem cell research, I have fought against the notion that an early embryo is not a human organism, but just a "ball of cells" as junk biology. Thanks.
7.4.2010 | 1:00pm
Mitz says:
http://www.youtube.com/watch?v=UX7goxsip6Y&feature=related
This is quite an old video, but it shows the heart beat of the baby going from 140bpm to 200bpm when it’s been aborted, IS THAT NOT IT FEELING PAIN?????. It also shows the mouth opening. Is this the silent scream of a 12wk old fetus?? And moving violently trying to move away from the instrument. It may need to be done in exceptional circumstances i.e health reasons, a rape or girl gets pregnant too young, but why do some women wait until 24wks… 6mths of pregnancy to get rid of their baby??? that’s wrong. http://www.babycentre.co.uk/video/pregnancy/weeks-1-to-9-pregnancy/ Can anyone prove that the fetus NOT feel pain???? If a woman goes into labor at 25wks, doctors will do everything to save the babies life but then at 24wks it's ok to abort, those 7days really make a difference??
This is quite an old video, but it shows the heart beat of the baby going from 140bpm to 200bpm when it’s been aborted, IS THAT NOT IT FEELING PAIN?????. It also shows the mouth opening. Is this the silent scream of a 12wk old fetus?? And moving violently trying to move away from the instrument. It may need to be done in exceptional circumstances i.e health reasons, a rape or girl gets pregnant too young, but why do some women wait until 24wks… 6mths of pregnancy to get rid of their baby??? that’s wrong. http://www.babycentre.co.uk/video/pregnancy/weeks-1-to-9-pregnancy/ Can anyone prove that the fetus NOT feel pain???? If a woman goes into labor at 25wks, doctors will do everything to save the babies life but then at 24wks it's ok to abort, those 7days really make a difference??
One also suspects that Anthony Kennedy, the 'swing vote' preserving Roe in the Casey decision but ultimately supporting a partial-birth ban in Carhart will vote with the four decidedly conservative justices to support a sensible abortion restriction that will not only save countless untold lives but also spare women from the trauma both physical and mental that abortions bring. While this is far off from Roe being overturned it is also far more attainable and might push the debate towards the side of life. While some of us will still have reservations about the abortions that occur within the first 20 weeks, at least the most heinous and inhumane forms of abortion will be eliminated with this proposal, which one suspects even most Democrats can get behind.