LINCOLN, Neb. — Nebraska lawmakers on Tuesday passed a groundbreaking bill banning abortions at 20 weeks based on assertions that fetuses feel pain then. Gov. Dave Heineman planned to sign it into law in the afternoon.
If upheld by the courts, the bill could change the foundation of abortion laws nationwide. Current restrictions in Nebraska and elsewhere are based on a fetus’s ability to survive outside the womb, or viability.
Viability is determined on a case-by-case basis but is generally considered to occur at 22 to 24 weeks.
The Nebraska bill was partially meant to shut down one of the few late-term abortion providers in the country, Dr. LeRoy Carhart. He attracted attention after his friend and fellow late-term abortion provider Dr. George Tiller was shot to death by an abortion foe in Kansas last year.
Kansas lawmakers have passed a bill meant to keep Carhart from performing abortions in that state, but Gov. Mark Parkinson, who supports abortion rights, hasn’t acted on it yet.
A national abortion-rights group called the Nebraska bill “flatly unconstitutional.”
“It absolutely cannot survive a challenge without a change to three decades of court rulings,” said Nancy Northup, president of the Center for reproductive Rights. “Courts have been chipping away at abortion rights…this would be like taking a huge hacksaw to the rights.”
She indicated her group might challenge the law in court. Carhart has also suggested he might challenge the law.
But abortion opponents say a 2007 U.S. Supreme Court ruling upholding a federal ban on certain late-term abortions opens the door for such legislation because it suggests states have an interest in protecting fetuses. They also say the bill makes sense given what they say is new scientific evidence that fetuses feel pain.
“The Nebraska legislature has taken a bold step which should ratchet up the abortion debate across the nation,” Nebraska Right to Life director Julie Schmit-Albin said. “What we didn’t know in 1973 in Roe versus Wade … we know now.”
It is unclear how many fewer abortions might be performed in the state because of the law — doctors aren’t required to report at what stages in pregnancies they perform abortions. Carhart is believed to be the only doctor in the state that performs abortions at or after 20 weeks; Planned Parenthood does not perform abortions at 20 weeks.