Radical Fetal-Pain Laws Roll Back <em>Roe</em>

When Danielle Deaver of Nebraska was 22 weeks into her pregnancy, she learned that the probability of the fetus surviving after birth was close to zero. Deaver decided the most humane thing to do was end her pregnancy.  "At what point," she asked her doctor, "do we go from being good parents and doing everything we can to save our baby to being selfish and putting our baby through essentially torture when they were born?" The Des Moines Register reported what happened next: Under the state's new fetal-pain law, Deaver was forced to give birth. Then she watched her baby die in her arms.

Last year, Nebraska passed a law banning abortion after 20 weeks based on the unproven claim that at that point, a fetus can feel pain. Now Iowa, Idaho, Oklahoma, Minnesota, Arkansas, Kentucky, Georgia, Indiana, and Kansas are all poised to pass similar laws. "It's part of a trend we're seeing of attacks on women's autonomy and women's health," says Talcott Camp of the ACLU's Reproduction Freedom Project. Indeed, hundreds of laws placing ever-more stringent restrictions on abortion have popped up across the country in the past year, part of the right's reinvigorated strategy of making access to abortion harder. But this is different. Whereas most of these new restrictions work within the current legal framework, fetal-pain laws seek to fundamentally -- and unconstitutionally -- redefine the reproductive rights granted by Roe v. Wade.

The underlying logic of Roe is that there are two competing interests: The right of the pregnant woman to choose to have an abortion on the one hand and the state's interest in protecting a potential life on the other. The Court has long affirmed that viability is the point at which the state's interest eclipses the woman's -- and only when her health and life are not at risk. But not only is Nebraska's fetal-pain law based on junk science -- there is no proof a fetus experiences pain at 20 weeks, which solid evidence says is not possible until well into the third trimester -- it establishes a new legal standard for when women are entitled to an abortion; the state can intervene not when the fetus is viable but when it might feel pain.

"The law is blatantly unconstitutional, and they know it; they are trying to draw a new line," says Jordan Goldberg, state advocacy counsel at the Center for Reproductive Rights. She says that viability is "the only workable line to draw."

The pro-life organization National Right to Life (NRLC) is pushing the Nebraska law as an alternative to overturning Roe. "[They] have been clear that this bill is their mission," says Goldberg. (Goldberg said she could not comment on the center's litigation strategy but stressed that just because the Nebraska law has not yet been challenged in court, it didn't mean it wouldn't be in the future.) NRLC's director of state legislation, Mary Spaulding Balch recently praised the law, saying she hoped the Supreme Court would recognize, as she phrased it, "a compelling state interest in the unborn child who is capable of experiencing pain."

Head of Nebraska Right to Life Julie Schmit-Albin agreed. When asked in particular about the case of Danielle Deaver in an interview, she said, "We acknowledge the tragedy that occurs with a poor prenatal diagnosis for the baby. But isn't it more humane for the baby to die in a loving manner with comfort, care, and in the arms of her parents than by the intentional painful death through abortion?"

Likewise, state Sen. Mike Flood, who wrote the Nebraska bill, told the Des Moines Register that the bill functioned correctly in the Deavers' case and is meant to apply "even in these situations where the baby has a terminal condition or there's not much chance of surviving outside of the womb." The Nebraska law also defies Supreme Court precedent by limiting exceptions to the state's abortion ban to only cover threats to "physical health" and not psychological well-being, as the Court has directed. In a hearing held last winter before the Nebraska Legislature, Rep. Flood suggested that if a woman needs an abortion because she is suicidal, the state should lock her away until she gives birth.

The law raises the question of what it really means to use pain as a determining factor in deciding when a woman has a right to an abortion. According to the Guttmacher Institute, a research and policy outfit that focuses on reproductive health, only 1.5 percent of abortions are performed after 21 weeks. The women who make the choice* to have an abortion well into their pregnancy most often do so because of fetal-developmental problems. These fetuses aborted after 20 weeks would not have survived birth, and those that do continue to suffer major medical problems. This shows just how perverse anti-abortion activists' purported concern for pain is: They care a lot about it when it's experienced in the womb, but not at all once the child is born -- and forget about the emotional and physical pain of the mother.

Anti-abortion advocates are so obsessed with limiting abortion, they'll justify emotional and physical torture -- be it the fetus' or the mother's -- just to preserve life a few more days. "The goal of the legislation is to roll back access," says Goldberg. "They might have an explanation, but at the end of the day, that's what it's about.

*An earlier version inaccurately stated that most late-term abortions were performed because of fetal-developmental problems. See here for a clarification.

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