(VIDEO) Nebraska’s Fetal Pain Law: The Dangerous Gap Between Politics, Perception and Reality

Tiffany Campbell

On February 25th, Nebraska’s State Judiciary Committee heard testimony on proposed Legislative Bill 1103, the Abortion Pain Prevention Act.  The bill would ban abortions after 20 weeks unless the procedure would save a woman's life or “avert serious risk of substantial and irreversible physical impairment of a major bodily function.”  Missing from the bill is an exception for fatal fetal anomalies and selective reductions in cases of multiple pregnancies.

Tiffany Campbell is a mother of three in Nebraska who, based on her real, lived experience with fetal anomaly, has challenged abortion restrictions in that state to preserve the rights of women and their families to choose what is best for their own families given their own circumstances.  A previous article about her personal circumstances was published last year on Rewire and a video of Tiffany telling her story can be viewed in this post as can an article about the video, here.

On February 25th, Nebraska’s State Judiciary Committee heard testimony on proposed Legislative Bill 1103, the Abortion Pain Prevention Act.  The bill would ban abortions after 20 weeks unless the procedure would save a woman’s life or “avert serious risk of substantial and irreversible physical impairment of a major bodily function.”  Missing from the bill is an exception for fatal fetal anomalies and selective reductions in cases of multiple pregnancies.

I traveled to Lincoln, NE to share my story of selective reduction with the help of Trust Women PAC, a new organization founded by Julie Burkhart, former CEO of ProKanDo.  In 2006 I was pregnant with identical twins. Shortly after learning I was carrying twins, they were diagnosed with Twin-to-Twin Transfusion Syndrome, a condition where twins unequally share blood circulation. One boy was receiving too much blood resulting in a strained heart and acute risk of heart failure. Meanwhile, his brother was clinging to life, but his blood supply was insufficient to sustain normal development. This is an affliction in which if one twin dies, the other faces significant risk of death. In fact, severe TTTS has a 60-100 percent fetal or neonatal mortality rate.

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My husband and I were sent to one of the premier fetal care centers in the country and told our only hope for saving this pregnancy was to have a selective termination on one of the babies, and hope the other twin would survive. This was an excruciating decision for us to make. But it would have been unimaginably worse if our decision had been criminalized.

Under LB 1103, the lifesaving procedure that we underwent would have been illegal and unavailable in Nebraska.

Under LB 1103, we would have been forced to go against our better judgment as a family and against the sound medical advice of our physicians. And we would have buried two babies instead of one.

The bill proposes to use a fetus’s perceived ability to feel pain, rather than its ability to survive outside the womb, as the dividing line between legal and illegal abortions, despite the lack of medical evidence that fetuses can even feel pain before the third trimester.  An article in the Journal of the American Medical Association states:

Evidence regarding the capacity for fetal pain is limited but indicates that fetal perception of pain is unlikely before the third trimester. Little or no evidence addresses the effectiveness of direct fetal anesthetic or analgesic techniques. Similarly, limited or no data exist on the safety of such techniques for pregnant women in the context of abortion. Anesthetic techniques currently used during fetal surgery are not directly applicable to abortion procedures.

A fetus typically reaches viability at 24 weeks. I have heard from women all over the country who have had a late abortion because their baby was diagnosed with an illness incompatible with life. Every one of these women said they chose to have an abortion rather than bring a child into the world to live a short life filled with pain.  If we are worried about pain, then we must honor the rights of parents to make decisions about whether they want their born children to suffer needless pain.

I had the honor of meeting Tim Mosher, a St. Louis-based career firefighter and Emergency Medical Technician. Tim, who also traveled to the hearing with the help of Trust Women PAC, testified that when his wife was pregnant in 2004 with a baby girl, an ultrasound showed at least four months into the pregnancy that the baby suffered from the most severe level of spina bifida.

Convinced, after extensive counseling and research, that their daughter would have much too much pain and suffering and ultimately die prematurely, they decided to end the pregnancy. Tim helped bring a human voice and face to this issue. It caused the couple a great deal of pain and grief, and they shed many tears, he said.

“Though much of my life represents pro-life, I understand the personal power and freedom of choice, and I will always be in support of this freedom,” Mosher told the committee.

In the hearing, Speaker of the Legislature Mike Flood of Norfolk, who introduced LB 1103, said he thinks it offers a middle ground on abortion: “It seems reasonable to me that if an unborn child has reached 20 weeks and has the ability to feel pain, he or she is worthy of the state’s protection.” 

Speaker Flood introduced himself to me after my testimony. He was about to give his closing on the bill and seemed perplexed. He thanked me for testifying, and added, “I heard your testimony, and I’m thinking.” I said, “You’re thinking?” “Yes, I’m thinking,” replied Speaker Flood.  He then pointed to the witness chair and walked away. I’d like to think my testimony made him rethink his proposed bill, but I’m guessing he was just thinking how he was going to counter my testimony in his closing.  A committee member gave him the chance to tell the committee where in the bill would provide an exception for selective reductions. He couldn’t.  He responded, “I’m going to have to think about it.”

There is, of course, a debate about the constitutionality of the bill, underscored by interviews published in an Omaha World Herald article:

Banning abortions based on fetal ability to feel pain would break new legal ground. Teresa Collett, a law professor at the University of St. Thomas in St. Paul, Minn., expressed confidence that the U.S. Supreme Court would find fetal pain adequate justification for the state to step in with a ban. “I believe this legislation has a very strong possibility of provoking a constitutional challenge, and I believe we would prevail,” she said.

But two other constitutional law experts said there was no reason to think the Supreme Court would change its stand that abortions cannot be banned before fetal viability.

Leslie Griffin, a law professor at the University of Houston Law Center, said the exceptions in the proposed ban are too narrow to meet constitutional standards.

The Supreme Court has ruled that bans on post-viability abortions must have exceptions for the life or health of the woman, including mental health.

Laurel Marsh, Executive Director of ACLU Nebraska, said the bill could be doomed by a second major matter.  “Our contention is that it still is unconstitutional because it has no mental health exception,” she said.

The proposed bill would set the most narrow health exception in the country by allowing abortions only for threats of “physical” impairment to a woman. The intention of leaving out a mental health exception seeks to close what many in the anti-choice community consider a major loophole in existing law. The court made it clear in 1973 and in 1992 that the health of a woman includes psychological factors.

State Sen. Brenda Council of Omaha proved that she is a true champion for women’s rights.  She questioned several witnesses about what would happen if a pregnant woman was suicidal and her doctors believed that an abortion was needed to address her mental condition.  Dr. Anita Showalter, head of obstetrics for Pacific Northwest University of Health Sciences, and witness for the anti-choice position, responded that she did not know of any situation in which abortion would be indicated for a suicidal woman.

Psychologist Rosemary Esseks, however, testified that an abortion might well be warranted in specific cases where a pregnant women suffering from mental illness  such as bipolar disorder, severe depression or schizophrenia was at risk. Some of the recommended medications for the illnesses listed above cannot be taken during a pregnancy as they may harm the developing fetus. Under LB 1103 a woman suffering from severe mental illness would be forced to carry a pregnancy to term and either risk harm to her fetus or stop taking her medications, thereby putting her own life at risk as a result of becoming suicidal, delusional or in some cases completely unable to care for herself.

State Sen. Council repeatedly questioned proponents of the bill about what choices a woman suffering from a mental illnesses would have under LB 1103. Of course, the woman would have no choice but to carry the pregnancy to term. One proponent testified that a doctor who knew his/her patient was suicidal should call the proper authorities and have the woman committed to a mental health facility. This leads me to wonder how long can a woman be committed against her will? If she’s 5 months pregnant, does that mean she’s committed for the remaining four months? And who pays the bill?

As many abortion rights activist know, a woman who doesn’t want to be pregnant will find a way to end her pregnancy.  My mother—now a retired anesthesiologist–recently told me the story of a woman who tried to self-induce abortion.  The woman was brought into the emergency room hemorraghing while my mother was on duty in 1995. The woman, a grandmother, was also on Medicare, and believed she was in menopause.  By the time she realized she was pregnant, it was too late for a first trimester abortion. A second trimester procedure—costing between $3,000 and $10,000–was completely out of her reach and, thanks to the Hyde Amendment, was also not covered under her insurance. When she arrived in the emergency room, she was about five months along and bleeding heavily, requiring many blood transfusions. She was not forthcoming on what started the bleeding. After taking her into surgery and requiring repeated resuscitation to keep her alive, she was saved, but the fetus was not. Police later went to her home and found a bloody spoon. The woman had tried to self abort using that spoon, and came close to killing herself in the process.

Dr. Darla Eisenhauer, an obstetrician testified in opposition of the bill and told the committee that in some cases, such as a cervical cancer diagnosis, it might be difficult to make a decision on a pregnancy before 20 weeks.  Under the proposed bill, women in these cases would be forced to carry the pregnancy to term, or until their doctor thinks the fetus has reached viability, induce the woman, and then start their cancer treatment after birth. This would force a woman to delay cancer treatment and could dramatically reduce her own chances of survival, as well as the chance that she would live to care for any existing children or family.

In case this seems far-fetched, we only have to look to Nicaragua where draconian abortion laws have kept a pregnant woman—and the mother of a 10-year-old girl—from receiving desperately-needed cancer treatment. Having sought treatment for cancer at 8 weeks of pregnancy, she has been denied both an abortion and the cancer treatment she needs to live. In this nightmare scenario, a government has deemed that the “rights” of a potential life super-cede those of a living, breathing woman, a scenario easily envisioned under the proposed Nebraska bill.

After my testimony at the hearing on the Nebraska bill concluded, three committee members thanked me. One of them; a known anti-choice voter, said to me, “Just when you think you’ve heard all that can go wrong during a pregnancy.”  I truly believe my testimony helped open the hearts and minds of undecided committee members. The men on the committee who are openly anti-choice had a hard time looking me in the eye during my teary testimony. I believe they will vote yes on the bill, but I hope my testimony makes it a little harder for them to do so.

If LB 1103 is passed, every other woman and family in Nebraska would be stripped of their right to make private medical decisions in consultation with their doctor and clergy.  Instead, the government would be dictating a family’s personal choices.  This is indeed the vision of the anti-choice movement for all women of this country.

Why would we allow this to happen?

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Roundups Politics

Campaign Week in Review: ‘If You Don’t Vote … You Are Trifling’

Ally Boguhn

The chair of the Democratic National Convention (DNC) this week blasted those who sit out on Election Day, and mothers who lost children to gun violence were given a platform at the party's convention.

The chair of the Democratic National Convention (DNC) this week blasted those who sit out on Election Day, and mothers who lost children to gun violence were given a platform at the party’s convention.

DNC Chair Marcia Fudge: “If You Don’t Vote, You Are Ungrateful, You Are Lazy, and You Are Trifling”

The chair of the 2016 Democratic National Convention, Rep. Marcia Fudge (D-OH), criticized those who choose to sit out the election while speaking on the final day of the convention.

“If you want a decent education for your children, you had better vote,” Fudge told the party’s women’s caucus, which had convened to discuss what is at stake for women and reproductive health and rights this election season.

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“If you want to make sure that hungry children are fed, you had better vote,” said Fudge. “If you want to be sure that all the women who survive solely on Social Security will not go into poverty immediately, you had better vote.”

“And if you don’t vote, let me tell you something, there is no excuse for you. If you don’t vote, you don’t count,” she said.

“So as I leave, I’m just going to say this to you. You tell them I said it, and I’m not hesitant about it. If you don’t vote, you are ungrateful, you are lazy, and you are trifling.”

The congresswoman’s website notes that she represents a state where some legislators have “attempted to suppress voting by certain populations” by pushing voting restrictions that “hit vulnerable communities the hardest.”

Ohio has recently made headlines for enacting changes that would make it harder to vote, including rolling back the state’s early voting period and purging its voter rolls of those who have not voted for six years.

Fudge, however, has worked to expand access to voting by co-sponsoring the federal Voting Rights Amendment Act, which would restore the protections of the Voting Rights Act that were stripped by the Supreme Court in Shelby County v. Holder.

“Mothers of the Movement” Take the National Spotlight

In July 2015, the Waller County Sheriff’s Office released a statement that 28-year-old Sandra Bland had been found dead in her jail cell that morning due to “what appears to be self-asphyxiation.” Though police attempted to paint the death a suicide, Bland’s family has denied that she would have ended her own life given that she had just secured a new job and had not displayed any suicidal tendencies.

Bland’s death sparked national outcry from activists who demanded an investigation, and inspired the hashtag #SayHerName to draw attention to the deaths of Black women who died at the hands of police.

Tuesday night at the DNC, Bland’s mother, Geneva Reed-Veal, and a group of other Black women who have lost children to gun violence, in police custody, or at the hands of police—the “Mothers of the Movement”—told the country why the deaths of their children should matter to voters. They offered their support to Democratic nominee Hillary Clinton during a speech at the convention.

“One year ago yesterday, I lived the worst nightmare anyone could imagine. I watched as my daughter was lowered into the ground in a coffin,” said Geneva Reed-Veal.

“Six other women have died in custody that same month: Kindra Chapman, Alexis McGovern, Sarah Lee Circle Bear, Raynette Turner, Ralkina Jones, and Joyce Curnell. So many of our children are gone, but they are not forgotten,” she continued. 

“You don’t stop being a mom when your child dies,” said Lucia McBath, the mother of Jordan Davis. “His life ended the day that he was shot and killed for playing loud music. But my job as his mother didn’t.” 

McBath said that though she had lost her son, she continued to work to protect his legacy. “We’re going to keep telling our children’s stories and we’re urging you to say their names,” she said. “And we’re also going to keep using our voices and our votes to support leaders, like Hillary Clinton, who will help us protect one another so that this club of heartbroken mothers stops growing.” 

Sybrina Fulton, the mother of Trayvon Martin, called herself “an unwilling participant in this movement,” noting that she “would not have signed up for this, [nor would] any other mother that’s standing here with me today.” 

“But I am here today for my son, Trayvon Martin, who is in heaven, and … his brother, Jahvaris Fulton, who is still here on Earth,” Fulton said. “I did not want this spotlight. But I will do everything I can to focus some of this light on the pain of a path out of the darkness.”

What Else We’re Reading

Renee Bracey Sherman explained in Glamour why Democratic vice presidential nominee Tim Kaine’s position on abortion scares her.

NARAL’s Ilyse Hogue told Cosmopolitan why she shared her abortion story on stage at the DNC.

Lilly Workneh, the Huffington Post’s Black Voices senior editor, explained how the DNC was “powered by a bevy of remarkable black women.”

Rebecca Traister wrote about how Clinton’s historic nomination puts the Democratic nominee “one step closer to making the impossible possible.”

Rewire attended a Democrats for Life of America event while in Philadelphia for the convention and fact-checked the group’s executive director.

A woman may have finally clinched the nomination for a major political party, but Judith Warner in Politico Magazine took on whether the “glass ceiling” has really been cracked for women in politics.

With Clinton’s nomination, “Dozens of other women across the country, in interviews at their offices or alongside their children, also said they felt on the cusp of a major, collective step forward,” reported Jodi Kantor for the New York Times.

According to Philly.com, Philadelphia’s Maternity Care Coalition staffed “eight curtained breast-feeding stalls on site [at the DNC], complete with comfy chairs, side tables, and electrical outlets.” Republicans reportedly offered similar accommodations at their convention the week before.

Analysis Law and Policy

After ‘Whole Woman’s Health’ Decision, Advocates Should Fight Ultrasound Laws With Science

Imani Gandy

A return to data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous "informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

Whole Woman’s Health v. Hellerstedt, the landmark U.S. Supreme Court ruling striking down two provisions of Texas’ omnibus anti-abortion law, has changed the reproductive rights landscape in ways that will reverberate in courts around the country for years to come. It is no longer acceptable—at least in theory—for a state to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word.

In an opinion driven by science and data, Justice Stephen Breyer, writing for the majority in Whole Woman’s Health, weighed the costs and benefits of the two provisions of HB 2 at issue—the admitting privileges and ambulatory surgical center (ASC) requirements—and found them wanting. Texas had breezed through the Fifth Circuit without facing any real pushback on its manufactured claims that the two provisions advanced women’s health. Finally, Justice Breyer whipped out his figurative calculator and determined that those claims didn’t add up. For starters, Texas admitted that it didn’t know of a single instance where the admitting privileges requirement would have helped a woman get better treatment. And as for Texas’ claim that abortion should be performed in an ASC, Breyer pointed out that the state did not require the same of its midwifery clinics, and that childbirth is 14 times more likely to result in death.

So now, as Justice Ruth Bader Ginsburg pointed out in the case’s concurring opinion, laws that “‘do little or nothing for health, but rather strew impediments to abortion’ cannot survive judicial inspection.” In other words, if a state says a restriction promotes women’s health and safety, that state will now have to prove it to the courts.

With this success under our belts, a similar return to science and data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous “informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

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In Planned Parenthood v. Casey, the U.S. Supreme Court upheld parts of Pennsylvania’s “informed consent” law requiring abortion patients to receive a pamphlet developed by the state department of health, finding that it did not constitute an “undue burden” on the constitutional right to abortion. The basis? Protecting women’s mental health: “[I]n an attempt to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”

Texas took up Casey’s informed consent mantle and ran with it. In 2011, the legislature passed a law that forces patients to undergo a medical exam, whether or not their doctor thinks they need it, and that forces them to listen to information that the state wants them to hear, whether or not their doctor thinks that they need to hear it. The purpose of this law—at least in theory—is, again, to protect patients’ “mental health” by dissuading those who may be unsure about procedure.

The ultra-conservative Fifth Circuit Court of Appeals upheld the law in 2012, in Texas Medical Providers v. Lakey.

And make no mistake: The exam the law requires is invasive, and in some cases, cruelly so. As Beverly McPhail pointed out in the Houston Chronicle in 2011, transvaginal probes will often be necessary to comply with the law up to 10 to 12 weeks of pregnancy—which is when, according to the Guttmacher Institute, 91 percent of abortions take place. “Because the fetus is so small at this stage, traditional ultrasounds performed through the abdominal wall, ‘jelly on the belly,’ often cannot produce a clear image,” McPhail noted.

Instead, a “probe is inserted into the vagina, sending sound waves to reflect off body structures to produce an image of the fetus. Under this new law, a woman’s vagina will be penetrated without an opportunity for her to refuse due to coercion from the so-called ‘public servants’ who passed and signed this bill into law,” McPhail concluded.

There’s a reason why abortion advocates began decrying these laws as “rape by the state.”

If Texas legislators are concerned about the mental health of their citizens, particularly those who may have been the victims of sexual assault—or any woman who does not want a wand forcibly shoved into her body for no medical reason—they have a funny way of showing it.

They don’t seem terribly concerned about the well-being of the woman who wants desperately to be a mother but who decides to terminate a pregnancy that doctors tell her is not viable. Certainly, forcing that woman to undergo the painful experience of having an ultrasound image described to her—which the law mandates for the vast majority of patients—could be psychologically devastating.

But maybe Texas legislators don’t care that forcing a foreign object into a person’s body is the ultimate undue burden.

After all, if foisting ultrasounds onto women who have decided to terminate a pregnancy saves even one woman from a lifetime of “devastating psychologically damaging consequences,” then it will all have been worth it, right? Liberty and bodily autonomy be damned.

But what if there’s very little risk that a woman who gets an abortion experiences those “devastating psychological consequences”?

What if the information often provided by states in connection with their “informed consent” protocol does not actually lead to consent that is more informed, either because the information offered is outdated, biased, false, or flatly unnecessary given a particular pregnant person’s circumstance? Texas’ latest edition of its “Woman’s Right to Know” pamphlet, for example, contains even more false information than prior versions, including the medically disproven claim that fetuses can feel pain at 20 weeks gestation.

What if studies show—as they have since the American Psychological Association first conducted one to that effect in 1989—that abortion doesn’t increase the risk of mental health issues?

If the purpose of informed consent laws is to weed out women who have been coerced or who haven’t thought it through, then that purpose collapses if women who get abortions are, by and large, perfectly happy with their decision.

And that’s exactly what research has shown.

Scientific studies indicate that the vast majority of women don’t regret their abortions, and therefore are not devastated psychologically. They don’t fall into drug and alcohol addiction or attempt to kill themselves. But that hasn’t kept anti-choice activists from claiming otherwise.

It’s simply not true that abortion sends mentally healthy patients over the edge. In a study report released in 2008, the APA found that the strongest predictor of post-abortion mental health was prior mental health. In other words, if you’re already suffering from mental health issues before getting an abortion, you’re likely to suffer mental health issues afterward. But the studies most frequently cited in courts around the country prove, at best, an association between mental illness and abortion. When the studies controlled for “prior mental health and violence experience,” “no significant relation was found between abortion history and anxiety disorders.”

But what about forced ultrasound laws, specifically?

Science has its part to play in dismantling those, too.

If Whole Woman’s Health requires the weighing of costs and benefits to ensure that there’s a connection between the claimed purpose of an abortion restriction and the law’s effect, then laws that require a woman to get an ultrasound and to hear a description of it certainly fail that cost-benefit analysis. Science tells us forcing patients to view ultrasound images (as opposed to simply offering the opportunity for a woman to view ultrasound images) in order to give them “information” doesn’t dissuade them from having abortions.

Dr. Jen Gunter made this point in a blog post years ago: One 2009 study found that when given the option to view an ultrasound, nearly 73 percent of women chose to view the ultrasound image, and of those who chose to view it, 85 percent of women felt that it was a positive experience. And here’s the kicker: Not a single woman changed her mind about having an abortion.

Again, if women who choose to see ultrasounds don’t change their minds about getting an abortion, a law mandating that ultrasound in order to dissuade at least some women is, at best, useless. At worst, it’s yet another hurdle patients must leap to get care.

And what of the mandatory waiting period? Texas law requires a 24-hour waiting period—and the Court in Casey upheld a 24-hour waiting period—but states like Louisiana and Florida are increasing the waiting period to 72 hours.

There’s no evidence that forcing women into longer waiting periods has a measurable effect on a woman’s decision to get an abortion. One study conducted in Utah found that 86 percent of women had chosen to get the abortion after the waiting period was over. Eight percent of women chose not to get the abortion, but the most common reason given was that they were already conflicted about abortion in the first place. The author of that study recommended that clinics explore options with women seeking abortion and offer additional counseling to the small percentage of women who are conflicted about it, rather than states imposing a burdensome waiting period.

The bottom line is that the majority of women who choose abortion make up their minds and go through with it, irrespective of the many roadblocks placed in their way by overzealous state governments. And we know that those who cannot overcome those roadblocks—for financial or other reasons—are the ones who experience actual negative effects. As we saw in Whole Woman’s Health, those kinds of studies, when admitted as evidence in the court record, can be critical in striking restrictions down.

Of course, the Supreme Court has not always expressed an affinity for scientific data, as Justice Anthony Kennedy demonstrated in Gonzales v. Carhart, when he announced that “some women come to regret their choice to abort the infant life they once created and sustained,” even though he admitted there was “no reliable data to measure the phenomenon.” It was under Gonzales that so many legislators felt equipped to pass laws backed up by no legitimate scientific evidence in the first place.

Whole Woman’s Health offers reproductive rights advocates an opportunity to revisit a host of anti-choice restrictions that states claim are intended to advance one interest or another—whether it’s the state’s interest in fetal life or the state’s purported interest in the psychological well-being of its citizens. But if the laws don’t have their intended effects, and if they simply throw up obstacles in front of people seeking abortion, then perhaps, Whole Woman’s Health and its focus on scientific data will be the death knell of these laws too.