Nebraska's Abortion Pain Prevention Act, signed into law last week, appears to have a quite reasonable aim: to prevent fetuses from feeling pain during abortions. In fact, the law, which bans abortions for women more than 20 weeks pregnant, is yet another attempt to undo Roe vs. Wade and abolish a woman's constitutional right to a pre-viability abortion. To do this, the law takes a disingenuous path, one well trodden by antiabortion legislation passed in the decades since Roe.
Abortion legislation today commonly masquerades as something much smaller than a call to ban all abortions. Laws that require teens to consult their parents before obtaining abortions purport to encourage family communication and protect youth from rash decision-making. Laws that require women to wait 48 hours and make two trips to the doctor before obtaining an abortion are cast as ensuring "informed consent." Ostensibly, Nebraska's new law addresses fetal pain.
But these narrow aims are not what the laws are really about. A 2007 strategy memo by antiabortion leader James Bopp Jr. promotes "incremental" abortion restrictions as an interim tactic until abortion can be fully banned. The memo points out that these more limited measures serve to "keep the abortion issue alive and change hearts and minds" and thus to "translate into more disfavor for all abortions."
It is evident that the drafters of Nebraska's law were not primarily concerned with fetal pain. This law bans abortions starting 20 weeks after gestation, claiming that this is the point at which fetuses can feel pain. But the law doesn't ban all abortions during that period. For example, a woman can still obtain an abortion if it's needed to save her from grave physical harm. If fetal pain marks the threshold beyond which we should not kill a fetus, why are any abortions permitted during this period? Moreover, for those permitted abortions, the legislation does nothing to protect the fetus from its purported pain, such as requiring the administration of anesthesia. If the law's goal is to protect fetuses from pain, it is oddly framed.
But let's assume this law more clearly addressed fetal pain. Has a scientific breakthrough occurred that warrants a reversal of Roe vs. Wade? Proponents certainly claim that. They maintain that new evidence on fetal pain is so compelling that Roe simply cannot stand in its wake. According to Nebraska Right to Life director Julie Schmit-Albin, "What we didn't know in 1973 … we know now."
We have reason to be suspicious of attempts to restrict abortion based on supposedly new scientific evidence about fetal development. Efforts to oppose abortion on such grounds in the United States date back at least to the 19th century, when antiabortion doctors dubiously claimed to possess new and superior medical evidence concerning embryonic and fetal growth.
What new scientific evidence did Nebraska's legislature look to? In accordance with regular legislative practice, all testimony on the bill was heard by a small fraction of the 44 lawmakers who ultimately voted for it. Two witnesses testified on the topic of fetal pain. One was an expert in pain management and anesthesiology who admitted he had no personal experience treating or studying fetuses. The second was a pain expert who had administered fetal anesthesia in a neonatal intensive care unit, but only starting at 23 weeks. He also asserted that "life begins at conception" according to his "religious viewpoint" and his "maker." (This same doctor, venturing far beyond his apparent medical expertise, spontaneously volunteered that electroshock therapy to induce a grand mal seizure should be the preferred treatment over abortion for a suicidal woman 20 or more weeks pregnant.) It can hardly be said that Nebraska lawmakers learned of some new and authoritative evidence on fetal pain.
The fact is that there is nothing approaching a scientific consensus on fetal pain at 20 weeks' gestation. We should all support continuing objective, sound research on whether and when fetuses perceive pain. But the Nebraska legislature didn't want to wait for that, because scientific truth was not the point.
Should it be asked to rule on this law, the Supreme Court — and particularly Justice Anthony M. Kennedy, the court's swing vote on abortion — should remember that.
Caitlin Borgmann is a professor of law at the City University of New York School of Law. She testified as a constitutional expert at the legislative hearing on Nebraska's law and is a board member of the National Abortion Federation. She edits the Reproductive Rights Prof blog.