A Behind the Scenes Look at Nebraska’s Historic Pain-Capable Unborn Child Protection Act

By Dave Andrusko

A friend passed along a thoroughly intriguing and important analysis of Nebraska’s first of its kind “Pain-Capable Unborn Child Protection Act,” the template for identical laws introduced in 13 states this legislative session. This 1,470-word-long investigative story appears in an online newspaper– http://nebraska.statepaper.com/vnews/display.v/ART/2011/04/11/4da2ea5d80e3c —and is very much worth your time to read, even if it is not without blemishes and flaws.

(Left to right) Burke J. Balch, J.D., Director of NRLC's Robert Powell Center for Medical Ethics, Mary Spaulding Balch, J.D., Director of NRLC State Legislation Department, and Julie Schmit-Albin, Executive Director of Nebraska RTL.

We’ve written dozens of articles about this law, and dozens more about its legislative sisters. So what do we know now that we didn’t before, or appreciate more fully?

For starters the importance of sticking to your guns and establishing an unimpeachable legislative history. In banning abortions after the point at which medical science demonstrated the unborn can feel pain, the Pain-Capable Unborn Child Protection Act was portrayed as a fundamental break from previous Supreme Court abortion jurisprudence.

But if you held the law up to the light of previous cases, especially the last two abortion cases (Stenberg v. Carhart, and Gonzales v. Carhart), there were clearly shafts of light strongly suggesting that a majority of the Court is open to a new knowledge and technology not available in 1973.

Put another way, in an era of prenatal surgery (accompanied by the use of anesthesia to manage pain), four-dimensional, full-color ultrasounds, and a bevy of scientific studies showing that the hardware is in place by 20 weeks post-fertilization for the unborn to experience pain, suddenly “viability” may well not be the only “compelling state interest.”

What else? “The nonprofit Guttmacher Institute, which works to advance sexual and reproductive health, estimates that only 1.4 percent of abortions occur after the 20th week.” At first glance that sounds small, until you realize that 1.4 % of 1.3 million is over 18,000 unborn babies capable of experiencing pain who are torn to shreds.

We are also reminded of the impact of abortionist LeRoy Carhart, a man who specializes in aborting babies late in pregnancy. Nebraska is a pro-life state, but the kickstart for the Pain-Capable Unborn Child Protection Act was Carhart’s announcement that he was going to take the place of the late George Tiller, whose “practice” of aborting babies very, very late in pregnancy was controversial even in pro-abortion circles. The idea of Bellevue, Nebraska,  replacing Wichita, Kansas, appalled all pro-lifers, including Nebraska Speaker of the Legislature  Mike Flood, who championed the bill.

One other insight from “Nebraska’s Controversial Abortion Law Now Being Copied Nationwide.” Why haven’t the pro-abortionists challenged Nebraska’s law?  One answer is worries about providing an “often-stridently conservative majority” on the Supreme Court with the chance to “reconsider Roe v. Wade. That prospect isn’t encouraging to the pro-choice camp.”

Julie Schmit-Albin, executive director of Nebraska RTL, was quoted extensively in the story, including on this question.

“We and NRLC have been advising other states to stick to what works, the Nebraska law,” Schmit-Albin said. “The fact that the law hasn’t been challenged tells us we are on solid ground, at least with the legislative record that Nebraska laid down.”

The author of the story concludes that “Eventually, however, the standards it imposes are virtually certain to go before the bar.” Maybe yes, maybe no. 

At this juncture Schmit-Albin made a very important point. “Schmit-Albin is advising anti-abortion forces in other states to avoid enacting a weak measure that could be subject to attack.”

An excellent story, which I hope you will read. Please also keep reading www.nationalrightotlifenews.org  for our daily state legislative updates. We will be talking about the work of other states who are attempting to pass Pain-Capable Unborn Child Protection Acts and other life-affirming laws.

I would very much appreciate your help by way of  feedback on National Right to Life News Today. Please send your comments to daveandrusko@gmail.com. If you like, join those who are following me on Twitter at http://twitter.com/daveha

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