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

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(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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