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Roe v. Wade Outdated by Scientific Development

Nebraska's Fetal Pain Law Introduces a New Standard for Abortion Laws

by Margaret Datiles 

Roe v. Wade and its progeny established the “viability” standard for determining when an abortion is legal.  But last week, when Nebraska enacted a law prohibiting abortions based on when an unborn child can feel pain, a new standard – which could replace Roe’s “viability” standard – has come on the scene. 

Nebraska’s “Pain Capable Unborn Child Protection Act” passed by a landslide 44-5 vote in Nebraska’s unicameral legislature on April 13.  It prohibits abortions of unborn children after 20 weeks of gestation, the point in fetal development when an unborn child is capable of feeling pain.  The law also contains a narrowly drafted exception for medical necessity. 

Medical Basis for Fetal Pain Legislation

The new law reflects the latest scientific research on fetal development.  The accepted consensus within the medical community is that, at 20 weeks gestation, an unborn child’s nerve connections for sensing pain have developed.  

Medical experts testified before the Nebraska legislature to inform the legislature of recent medical discoveries on fetal pain which support the necessity of the law.  For example, American College of Obstetricians and Gynecologists’ (ACOG) former President, Dr. Richard T.F. Schmidt, stated that “[i]t can be clearly demonstrated that fetuses seek to evade certain stimuli” in the same way adults react to pain. 

Similarly, Dr. Jean Wright, an anesthesiologist who specializes in pediatric care, testified that: 

[A]n unborn fetus after 20 weeks of gestation, has all the prerequisite anatomy, physiology, hormones, neurotransmitters, and electrical current to close the loop and create the conditions needed to perceive pain.  In a fashion similar to explaining the electrical wiring to a new house, we would explain that the circuit is complete from skin to brain and back.

International scientists also agree with this testimony.  For example, a report by Britain’s Medical Research Council Group on Fetal Pain concluded that there is a medical consensus that an unborn child can feel pain at 20 weeks.  Another British report by the Commission of Inquiry into Fetal Sentience found that there is evidence that an unborn child may feel pain at 11-13 weeks gestation, and perhaps even as early as 5.5 weeks. 

In addition, the American Society of Anesthesiologists published an article which featured a British survey demonstrating that 80% of neuroscientists recommend providing unborn children with pain medication for abortions after 11 weeks gestation.

In the face of overwhelming scientific evidence on fetal pain, the “Pain Capable Unborn Child Protection Act” passed easily though the Nebraska legislature.

Hopes for Challenging Roe

The body of scientific knowledge and literature on fetal development and fetal pain has grown significantly since Roe v. Wade and Planned Parenthood v. Casey.  Nebraska’s law suggests that Roe’s viability standard is “outdated” in light of new scientific research and developments. 

Pro-life advocates for Nebraska’s fetal pain law hope that the newly-enacted legislation will be challenged in court and ultimately end up in the U.S. Supreme Court as a challenge to Roe v. Wade.

In Planned Parenthood v. Casey (which reaffirmed the basic holdings of Roe), the Supreme Court ruled that a law which requires abortion providers to offer materials on fetal development is constitutional.  This conclusion was reaffirmed by the Supreme Court in Gonzales v. Carhart. 

Nebraska’s law, however, goes further than merely requiring that women be informed of fetal pain by completely banning abortion at 20 weeks on the basis of fetal pain.  Foreseeing a possible constitutional challenge to this abortion ban, pro-life advocates seek a chance to inform the public on the nature of fetal pain and question the reasoning of Roe.

Some have compared Nebraska’s “one-of-a-kind” fetal pain law to Nebraska’s partial-birth abortion ban.  Also the first of its kind, Nebraska’s partial-birth abortion ban started a chain of legislative enactments and court challenges which ended with the Supreme Court upholding the constitutionality of partial-birth abortion bans.  Some pro-lifers hope that the new fetal pain law will have a similar effect. 

Roe and Casey drew the line between legal and illegal abortions at viability, which occurs around 24 weeks gestation.  If the line between legal and illegal abortions is redrawn by the Supreme Court based on when an unborn child can feel pain (rather than when an unborn child can survive outside of the womb), then the Roe and Casey standard of review for abortion legislation could be overturned. 

Supporters of the fetal pain law argue that a “fetal pain” standard should replace the “viability” standard because the latter has been outdated by modern science.  They argue that new medical knowledge on fetal pain legitimizes a state interest in the life of an unborn child that is compelling enough to outweigh a woman’s right to abortion at 20 weeks of gestation.  

 

In conclusion, it appears that if the Supreme Court ultimately upholds the constitutionality of Nebraska’s fetal pain abortion ban after a series of court challenges, the fundamental holdings of Roe v. Wade will be shaken, if not completely reversed. 

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(The views expressed in this column are those of the author and do not necessarily reflect the positions of Headline Bistro or the Knights of Columbus.)