On April 13th, two laws were passed in Nebraska that put new restrictions on abortions. Republican Governor Dave Heineman signed two bills, one that bans any abortion at or after 20 weeks of pregnancy, and another that mandates that women intending to have an abortion must be screened for potential mental health and other issues that may become complications post-abortion. Taken together, these bills represent significant restrictions on reproductive rights in the state of Nebraska which if upheld in court threaten to influence changes of other states’ abortion laws. The first law, which is based on the claim that fetuses feel pain at 20 weeks, demonstrates state interest in protecting the fetus over the mother even though the fetus has not been considered viable at that point of the pregnancy and thus changes the justification for determination of the late-term cut-off.. The second law, though not elaborated upon in the article, can be interpreted as an attempt at upholding the best interests of the mother, though the manner in which this may occur is still restrictive by possibly limiting the choice of the mother through influence by medical personnel. Regardless of the rationale, these laws, specifically the “no-pain law” will almost certainly be challenged, especially since the “no-pain” law directly contests the traditional guidelines for determining abortion term cut-offs.
The “no-pain” abortion law sets a precedent for changing the justification for abortion limits from the idea of viability to one of pain and reintroduces a need for more scientific evidence surrounding abortion procedures. However, a strong criticism of the fetal pain basis for justification is that the “American College of Obstetricians and Gynecologists … says it knows of no legitimate evidence that fetuses experience pain at that stage” (The Associated Press). Law professor Caitlin Borgmann thus counters that if the court upholds this law, it is “disregarding the importance of good scientific evidence” (The Associated Press). Mary Spaulding Balch, legislative director for National Right to Life highlights the big picture implication of such a policy by stating that it shows that “the state has an interest in protecting the unborn child before viability” (The Associated Press). Such legislation appears to follow from the 2007 U.S. Supreme Court ruling that upheld the 2003 ban on certain abortions that would be performed late-term because it implied that states do have an interest in protecting fetuses, at least by a certain point in the pregnancy.
The deadline imposed by the new “no-pain” law seeks to extend protection of the fetus to before the time at which it becomes viable, or able to survive outside the womb. The viability justification essentially delineates the deadline according to when termination of the pregnancy would mean termination of a life that otherwise could exist independently. In other words, without this new law, the right of the mother to choose is held above the rights of the fetus up until it has developed enough so that it can survive without being inside the mother. The new law restricts some of the mother’s freedom of decision by encroaching upon the timeframe during which she must decide and act.
The other law that requires screening of a woman for mental health status and other indicators of possible issues post-abortion can conversely be viewed as trying to protect the interests of the mother. However, a closer look suggests a similar potential increase in restriction, for if findings from such screens could exclude the woman from abortion eligibility, the state of Nebraska is imposing another serious threat on women’s reproductive choice. Even if any findings would not be exclusionary by law, the basis of the concept that the screening is to identify “risk factors indicating if women might have problems after having abortions” still introduces outside influences that could affect the woman’s decision (The Associated Press). None of this is explicitly stated in the article, but the implication can easily be drawn from the context of the proposal of these laws, for the Nebraska legislature clearly is seeking to impose more restrictions on abortion rights by holding the fetus’ interests above those of the mother by 20 weeks into pregnancy. Though not explained, the law seems to require the input of some medical personnel, which detracts from the choice as one that is personal. Allison Crews, a pro-choice woman, explains that to her, “being pro-woman, being pro-choice, means being supportive of any reproductive choice a woman makes for herself…we have the right to mother the way we want to, to ignore the ‘well-meaning’ advice and criticism of others” (Crews 148-149). Along with this vein, reproductive choice involves more than just the ability to make a decision regarding one’s own body and pregnancy, but also should feature an absence of coercion or outside influence that can sway one’s decision such that it may no longer be representative of one’s own opinions.
The most striking part about this article is simply the implication of these new laws on the future of abortion rights – the state of Nebraska is increasingly siding with the rights of the fetus over those of the mother and so is imposing more influence on the reproductive decisions of the mother. Judith Arcana contends that “abortion is a motherhood issue” and that regardless of legislative or scientific determinations that “conception is the beginning of maternity” (Arcana 225, 226). An abortion decision thus is a life or death choice that to Arcana is to be made by a woman or girl “who is already a mother” (Arcana 226). Again, legal distinctions aside, Arcana’s argument is that abortion is a very personal decision, a “dreadful responsibility,” and one that women should regard as a choice that reflects what is best “for ourselves and our babies” (Arcana 226). This pro-choice reasoning is in conflict with the Nebraska laws, which if upheld side the state with the fetus over the mother and potentially allow for the state to influence the woman’s decision in the case of the medical screening law. The article mentions that “the law focusing on late-term abortions is designed to shut down one of the few doctors in the nation who performs them in Nebraska,” and by doing so highlights the fact that the state is trying to prevent the said doctor from performing late-term abortions for those who choose them (The Associated Press). Of course women who elect to have an abortion prior to 20 weeks into pregnancy will not be as directly affected by this change in legislature, yet the law imposes more limits on the time-frame for the decision. This can still affect the pregnancies of many women for a variety of reasons, whether it be identification of a disease or birth defect later on in pregnancy, or even a delay in a woman’s ability to have consultations about an abortion decision or a woman’s decision to make up her mind.
These changes to abortion laws in Nebraska will most certainly be challenged, based upon the commentary in the article. Nancy Northup, president of the Center for Reproductive Rights likens the laws to “taking a huge hacksaw to [abortion] rights” and argues that such laws cannot possibly be upheld in the face of “three decades of court rulings” (The Associated Press). In the “Opinion of the Court” that outlines the Jane Roe v. Henry Wade ruling, the opinion of the court delivered by Mr. Justice Blackmun declares “with respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability…State regulations protective of fetal life after viability thus has both logical and biological justifications.” The apparent lack of concrete research to support the basis of the “no-pain” justification seems like it could undermine attempts to uphold the law focusing on late-term abortions. Any change in the legal determination of the “compelling point” of a woman’s pregnancy should thus require an extensive body of evidence in order to have a change of overturning this provision of the Roe v. Wade decision. However, such a change in the justification from a question of fetus viability to a fetus’ ability to feel pain redefines the legal “compelling point” for a late-term abortion. Mary Spaulding Balch points out that “the law could lead to changes in state laws across the country if upheld by the courts,” again by setting a precedent of expanding the interests of the state of protecting a fetus prior to viability (The Associated Press). For pro-choice women like Allison Crews and Judith Arcana, encroachment on any decision concerning abortion, whether it be by setting more deadlines as in the “no-pain” law, or by requiring others to have some say in the process as in the medical screen law, the freedom of choice that some currently enjoy is definitely becoming more restricted. In sum, the new Nebraska abortion laws have the potential to trigger further changes to reproductive rights in other states, but will most likely not do so without sufficient attempts to contest the rationale that supports them.
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