(VIDEO) Unconscionable Cruelty: Nebraska’s 20-Week Law Meets the Real World

Carole Joffe

Nebraska’s new abortion law forced Danielle Deaver to give birth to a baby she and her doctors knew would die minutes later, fighting for breath that would not come.

This article is crossposted from Advancing New Standards in Reproductive Health (ANSIRH).

Editors Note: This article was changed at 10:25 am March 17 to correct a sentence stating Frances Kissling founded Catholics for Choice. She is a former president of the organization.

“Nebraska’s new abortion law forced Danielle Deaver to live through ten excruciating days, waiting to give birth to a baby that she and her doctors knew would die minutes later, fighting for breath that would not come. And that’s what happened. [After the baby girl was born]… Deaver and her husband Robb watched, held and comforted the baby as it gasped for air, hoping she was not suffering. She died 15 minutes later.”

This deeply sad—and cruel—incident, which occurred several months ago in Nebraska, and was reported recently in the press, is not only an obvious tragedy for the parents involved, but a teachable moment for those who are following the consequences of the latest round of extreme abortion policies put in place by antiabortion legislators. Ms. Deaver was nearly 23 weeks pregnant when she found out she had suffered anhydramnios, a premature rupture of the membranes before a fetus has achieved viability. This diagnosis meant that if she carried to term her baby would almost certainly die in great discomfort shortly after birth.

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The Deavers sought an abortion. But Nebraska has recently passed a law that forbids abortions after 20 weeks, on the scientifically disputed ground that 20 weeks marks the point at which fetuses can feel pain. (The view most accepted in the medical community comes from an article published in the Journal of the American Medical Association by a group of scientists at the University of California, San Francisco, who concluded that a human fetus probably does not have the capacity to experience pain until the 29th week of pregnancy at the earliest). The only exception permitted by Nebraska’s law is a threat to the pregnant woman’s life. Several other states are now considering similar legislation.

The first, most obvious, lesson to be drawn from this incident is the growing fanaticism among anti-abortion state legislators and advocates with respect to abortion regulation, and their corresponding indifference to parental wishes. Like numerous other cases of later abortion with which I have become familiar in the course of my research, the Deavers sought an abortion, in this case of a much-wanted pregnancy, precisely to avoid the kind of suffering that their baby ended up enduring.

Nebraska State Senator Mike Flood

Nebraska State Senator Mike Flood

But the parents’ wishes, not to mention the newborn’s agonizing 15 minutes of struggle before she died, are of little consequence to those who promote such measures. As Nebraska legislator Senator Mike Flood told the press, “Even in these situations where the baby has a terminal condition or there’s not much chance of surviving outside of the womb, my point has been and remains that it is still a life.” A leader of Nebraska Right to Life similarly told the press that it was “more humane for the baby to die in a loving manner with comfort care and in the arms of her parents than by the intentional painful death through abortion.” Reading these statements, I could not help but be reminded of a very different response to parents, in situations similar to the Deavers, that was told to me by a chaplain who worked with the late Dr. George Tiller in Wichita, offering pastoral counseling to those receiving later abortions because of fetal anomalies: “This was holy work we were doing here. We gave the parents the gift of not having to make their babies suffer.”

A second lesson that emerges from this incident is the misguided nature of the recent calls by two prochoice writers for their colleagues in the abortion rights community to relent on the defense of post-first trimester abortions. Both Frances Kissling, former president of Catholics for Choice, and William Saletan,* of Slate.com, have argued that the prochoice movement is losing ground—“caught in a time warp” as Kissling put it in a widely disseminated Washington Post op-ed—because of its refusal to acknowledge “the existence and value of the fetus.” In order to regain public support, both authors suggest, the movement must be willing to question the legitimacy of abortions in the second trimester and beyond. To be sure, when Kissling wrote that “we need to firmly and clearly reject post-viability abortions except in extreme cases,” she also went on to list several exceptions, including “when the fetus suffers from conditions that are incompatible with a good quality of life.”

Kissling and Saletan’s call for a retreat on procedures after the first trimester may indeed be good politics, in that the American public as a whole is considerably more supportive of abortion in the first trimester than later. But the Nebraska case illustrates why their proposal is such bad policy. As noted above, Kissling makes quite clear her view that an abortion for a fetus in a situation similar to this Nebraska case would be justified, at 23 weeks and presumably later. Probably most Americans, when confronted with the facts, would reach the same conclusion. But the only relevant point here is that a majority of Nebraska legislators, in their refusal to allow any exceptions except a threat to the woman’s life, did not!

Kissling and Saletan offered their proposals as if there exists in the United States universal consensus as to what constitutes justifiable exceptions to abortion laws. But in my view this approach is naïve, considering the enormous politicization of the abortion issue. As just mentioned, the Nebraska legislators did not see fit to make fetal anomalies an allowable exception to the 20-week cutoff date.

Moreover, even when legislation does contains such exceptions as “threats to a woman’s life,” “serious health risks” to a woman, or “poor quality of life” for a fetus if the pregnancy continues, what these exceptions actually mean in practice are not always clear, and rely on subjective judgments by physicians—and often lawyers. And that is why the legal as well as legislative climate in the particular place where a contested pregnancy occurs is so consequential. Consider this press account of the deliberations of Danielle Deaver’s physician after she and her husband requested an abortion.

Dr. Todd Pankcatz, her primary physician…. said he asked several attorneys to review the law to see whether he could fulfill the family’s request to terminate the pregnancy…. Because of the uncertainty, Pankcatz said he was advised not to fulfill the family’s request. ‘There were criminal charges that I would potentially face by intervening in a pregnancy like this,’ Pankcatz said. Physicians who break the law face felony charges that could result in five years in prison and a $10,000 fine.”

For me, the overriding lesson to be drawn from the Deavers’ tragedy is that abortion rights advocates have to keep explaining to the American people why ideologically driven abortion restrictions have no place in a compassionate society.

Roundups Politics

Campaign Week in Review: Trump Doesn’t Want Tubman on the $20, Cruz Holds Up Anti-Slavery Bill

Ally Boguhn

Speaking at a town hall event on Thursday, Donald Trump said that while Harriet Tubman is “fantastic,” portraying her on the $20 bill was just “pure political correctness.”

Donald Trump couldn’t get behind putting iconic abolitionist Harriet Tubman on the front of the $20 bill this week, and Sen. Ted Cruz (R-TX) is reportedly holding up an anti-slavery measure over abortion access.

Trump Upset Tubman Will Be On $20 Bill 

Trump wasn’t thrilled with news that Tubman would replace former President Andrew Jackson on the front of the $20 bill.

Speaking at NBC’s TODAY town hall event on Thursday, Trump said that while Tubman is “fantastic,” portraying her on the $20 bill was just “pure political correctness.”

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“Andrew Jackson had a great history … [Jackson] had a history of tremendous success for the country,” Trump said when asked by host Matt Lauer to address the change. “Maybe we can come up with another denomination. Maybe we do the $2 bill, or we do another bill. I don’t like seeing it.”

Treasury Secretary Jacob Lew announced Wednesday that Tubman would replace Jackson on the front of the $20 bill. An image of Jackson will remain on the back. 

Ben Carson, Trump’s former rival for the Republican nomination turned supporter, also thought it’d be best to put Tubman on the $2 bill. “I love Harriet Tubman,” Carson said Wednesday during an appearance on Fox Business Network’s Cavuto: Coast to Coast. “I love what she did, but we can find another way to honor her. Maybe a $2 bill.”

Carson said that Jackson “was a tremendous president.”

“I mean, Andrew Jackson was the last president who actually balanced the federal budget, where we had no national debt,” he told Cavuto.

Cruz Reportedly Holding up Anti-Slavery Bill Because of Abortion

Cruz is reportedly holding up a bipartisan bill to help end slavery over concerns that it could help fund abortion care.

The End Modern Slavery Initiative Act (EMSI), sponsored by Sen. Bob Corker (R-TN), would “help eliminate slavery and human trafficking around the globe,” according to a press release announcing the bill.

The legislation would establish the End Modern Slavery Initiative Foundation, a nonprofit organization to fund grants outside of the United States. Though it would be funded in part by the federal government, 80 percent of the $1.5 billion the organization would hope to have would come from the private sector and foreign governments.

Though it’s “Senate tradition to decline to say who has put such a hold on a bill,” TIME reports that “research suggests that it’s Republican Sens. Mike Lee of Utah, James Lankford of Oklahoma and Ted Cruz of Texas, who is currently running for the GOP presidential nomination. The bill’s supporters say the Senators are holding the bill over a concern that some of the anti-slavery money might be used to pay for abortions.”

A Cruz spokesperson told the publication that while the senator supports the goals of the legislation, “he has some concerns with the EMSI bill, specifically whether it does enough to ensure that the foundation created by the bill would not be able to fund organizations that provide or support abortions.”

The Helms Amendment already ensures that “no foreign assistance funds may be used to pay for the performance of abortion as a method of family planning.”

What Else We’re Reading

Anti-choice groups are gearing up for a showdown with Trump.

Cruz doubled down on his support of bathroom discrimination laws after Trump told NBC: “There have been very few complaints the way it is. People go. They use the bathroom they feel is appropriate. There has been so little trouble.”

The Boston Globe has a long read explaining how Trump’s time in the pageant business “foreshadows a reputation for sexism and misogyny that sticks with him nearly 25 years later, in his presidential bid, in which coarse descriptions of women and perceived sexist comments have left him with extraordinarily high unfavorable ratings among women.”

Cruz refused to meet with a delegation of Muslims on Muslim Advocacy Day.

Hillary Clinton’s campaign says that Clinton would be open to picking a woman as her running mate should she win the nomination. “We’ll start with a broad list [of potential vice presidential candidates] and then begin to narrow it,” Clinton spokesperson John Podesta told the Boston Globe. “But there is no question that there will be women on that list.”

CNN reports that the Democratic Senatorial Campaign Committee has reserved nearly $40 million worth of airtime in states with key Senate races, including Florida, New Hampshire, Ohio, Colorado, and Nevada, in hopes of retaking the Senate majority.

The Huffington Post reports that Google Trends show that “Ted Cruz’s supporters share his weird fixation with soup.” Supporters of candidate Sen. Bernie Sanders (I-VT) are more likely to run a Google search for “Vegan Passover recipes” or a recipe for guacamole, while Clinton’s supporters searched for recipes for meat pies and quinoa.

Ohio Republicans are sponsoring a bill that could jeopardize emergency voting extensions in the state. According to ThinkProgress:

If legislation sponsored by Republican State Senator Bill Seitz is approved, anyone petitioning a judge to extend voting hours would have to put up a cash bond to cover the cost, which could range in the tens of thousands of dollars. If a court later finds that the polls should not have remained open, the voter would forfeit all the money. Only those who are so poor they can be certified as indigent would be exempted.

CORRECTION: The headline of this article has been updated to clarify Sen. Ted Cruz’s reported actions on the anti-slavery bill.

News Abortion

Unconstitutional 20-Week Abortion Ban Primed to Pass in South Carolina

Teddy Wilson

The state senate passed the bill Tuesday in a 36-9 vote, as eight Democrats joined the Republican majority.

South Carolina Gov. Nikki Haley (R) said that she would likely sign an unconstitutional ban on abortion care at 20 or more weeks of pregnancy. The bill’s path to the governor’s desk, however, has become uncertain

H 3114, sponsored by Rep. Wendy Nanney (R-Greenville), would ban abortions at 20 weeks or more post-fertilization unless, in the physician’s judgment, abortion care is necessary to avert the pregnant person’s death or avoid the risk of physical impairment of a major bodily function, other than a psychological condition. The measure’s limited definition of “fetal anomaly” means it would be illegal to abort many fetuses with severe disabilities. Senate Democrats have previously blocked the legislation.

Physicians who violate the anti-choice measure could face up to a $10,000 fine and three years in prison.

“I can’t imagine any scenario in which I wouldn’t sign it,” Haley told the Associated Press.

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South Carolina’s Republican lawmakers have pushed for similar legislation before, but Democrats have managed to block their efforts. Republicans were able to pass the bill this year after an epic legislative journey, as lawmakers added and removed amendments and debated the language of the unconstitutional abortion ban.

At issue has been what exceptions would be included in the bill. The current bill allows exceptions if the pregnant person’s life is in jeopardy or a doctor determines the fetus can’t survive outside the womb. There is no exception for rape or incest.

House members amended the measure to include such exceptions after the bill was first introduced in January 2015. The state senate amended the bill and stripped out the exceptions after state Sen. Lee Bright (R-Spartanburg) filibustered the bill, charging there should be no exceptions included in the bill. 

The state senate passed the bill last week in a 36-9 vote, as eight Democrats joined the Republican majority in voting for the version of the bill negotiated by a conference committee of three house members and three state senators.

A two-thirds majority of state senators present is needed to approve the conference committee bill. However, a two-thirds majority of all representatives, regardless of whether or not they are present, is needed for approval in the house.

Two votes have failed to gain the 83 votes needed for approval. The house failed to pass the bill on March 9 by one vote, and again failed to pass the bill on March 10, falling three votes shy.

State Sen. Brad Hutto (D-Orangeburg) told the State that lawmakers have no business dictating to pregnant people what they should do about their health care. “I have faith in the women of South Carolina that they know best what to do when the time comes to make a decision about their bodies,” Hutto said.

Laws to ban abortion at or after 20 weeks of pregnancy with varying exceptions have been enacted in 16 states, and the courts have blocked those laws in three states: Arizona, Georgia, and Idaho.

The so-called Pain-Capable Unborn Child Protection Act, based on copycat legislation authored by the National Right to Life Committee (NRLC), justifies the ban on the theory that a fetus can experience pain at 20 weeks of pregnancy. The claim that fetuses can feel pain at 20 weeks has been discredited by medical professionals.

Hospitals are the only facilities in which pregnant people seeking to terminate a pregnancy at 20 weeks or later could obtain abortion care. South Carolina’s three abortion clinics do not provide the procedure past 18 weeks.

Lawmakers must approve the conference committee compromise bill by the time the legislative session ends in June.