Nebraska Passes Unconstitutional Law Outlawing Abortions 20 Weeks After Conception

Yesterday, Nebraska Governor Dave Heineman (R-NE) signed legislation “banning most abortions 20 weeks after conception or later on the theory that a fetus, by that stage in pregnancy, has the capacity to feel pain.” The new rule replaces existing law which already prevents women from seeking an abortion after a fetus reaches viability, which is usually reached at about 24–26 weeks of gestation (or 22–24 weeks after conception).

Both the American Medical Association and the American College of Obstetricians & Gynecologist disavow the “science” behind the claim that a fetus can feel pain at 20 weeks postconception, but the so-called “Pain Capable Unborn Child Act” is more of a political statement than a policy proposal. The bill is “created almost entirely as a vehicle for getting anti-choice legislation challenged and potentially reviewed by the Supreme Court” and grew out of an effort to push one of the nation’s late term abortion providers out of the state:

The Nebraska law grew out of a battle over abortion waged in a far different forum. After an abortion opponent killed Dr. George R. Tiller, a leading late-term abortion provider in Wichita, Kan., last year, Dr. LeRoy H. Carhart, who sometimes worked with Dr. Tiller, said he would carry on his legacy by performing some later-term abortions in his clinic in Bellevue, Neb. Lawmakers in Nebraska were outraged at the prospect of becoming, in the words of one of the state’s leading anti-abortion groups, the next “late-term abortion capital of the Midwest.” Early Tuesday, the state’s nonpartisan unicameral legislature passed the new measure overwhelmingly, 44 to 5.

“I didn’t find this bill,” Mike Flood, the legislature’s speaker said, alluding to Dr. Carhart. “It found Nebraska.” Dr. Carhart could not be reached for comment.

The new law grants exceptions in cases of medical emergency, the pregnant woman’s imminent death, or a serious risk of “substantial and irreversible physical impairment of a major bodily function,” but it’s still ripe for legal challenge. My colleague Jessica Arons has identified at least 3 problems:

1) Under Planned Parenthood of Southeastern Pennsylvania v. Casey, no state can place an undue burden on a woman’s right to abortion before viability, which must be determined on a case by case basis. This bill bans abortion starting at 20 weeks, which is several weeks before most fetuses achieve viability.

2) This bill only has a very narrow physical health exception and a life exception, even though precedent requires exceptions for serious mental health concerns as well.

3) The bill is based on a legislative finding that fetuses can feel pain as early as 20 weeks, when there is no medical consensus on that point and in fact it is hotly disputed. Unfortunately after Gonzales v. Carhart, the legislature may now pass laws based on minority medical views, no matter how fringe and unsubstantiated they are.

“The intention of its supporters is to bring an abortion rights challenge before the United States Supreme Court, where they’re counting on Justice Kennedy to be their swing vote, based on the language he used in his brief from the Gonzalez vs. Carhart decision in 2007. Make no mistake: this is a national issue that impacts us all,” Julie Burkhart of TrustWomenPAC, observes.


Heineman also signed another abortion measure discouraging providers from offering abortion by allowing women to sue doctors that don’t follow a meticulous pre-abortion review process.