Nebraska's New Abortion Law: An Emotional Misnomer

julie marsh
Photo by Aimee Giese
Let's make one thing clear right now: I'm pro-choice. I was pro-choice when I was an unmarried, childless registered Republican, and I'm pro-choice now as a married mother of three and registered Independent.

So it should be no surprise that I don't support Nebraska's new law banning abortions after 20 weeks gestation.

But that's not to say that the prospect of such abortions doesn't bother me. Because it does. A lot.


Nebraska's law is titled "Pain-Capable Unborn Child Protection Act," and the justification behind it is the assertion that by week 20, the fetal nervous system has developed the capacity to sense pain. According to ABC News, "Medical experts testified at the Nebraska hearings that a fetus is able to feel pain at 20 weeks," and Mary Spaulding Balch of the National Right to Life Committee stated: "Doctors performing fetal surgery at and after 20 weeks now routinely use fetal anesthesia."

But a Journal of the American Medical Association review cited different reasons for the use of fetal anesthesia: "Administration of anesthesia and analgesia serves purposes unrelated to reduction of fetal pain, including inhibition of fetal movement, prevention of fetal hormonal stress responses, and induction of uterine atony." In simple terms, anesthesia is used to stabilize the fetus and facilitate procedures, not to prevent the fetus from feeling pain.

The same JAMA review concludes that: "Evidence regarding the capacity for fetal pain is limited but indicates that fetal perception of pain is unlikely before the third trimester."

Interestingly, the JAMA review was commissioned in 2005 because of proposed legislation "that would require doctors to counsel women seeking abortions about fetal pain." In spite of conclusions that fetal anatomical and physiological development -- specifically, thalomocortical pathways that only begin to develop between 23-30 weeks gestation -- likely precludes the sensation of pain, six states require counseling on fetal pain and three others "include information on fetal pain in their counseling materials."

I'm a mom. I can't stand the thought of any child, my own or someone else's, born or unborn, being in pain. These arguments are a shot to the heart of nearly any parent.

And that's exactly what they're supposed to be. Such justifications for laws meant to restrict or reduce abortions are based in emotion, not scientific evidence. "Pain-Capable Unborn Child Protection Act" is a misnomer intended to thwart opposition by its very name.

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