It is by no means the first attempt to use faulty “scientific data” declaring that fetuses can feel pain in order to implement more restrictions on a woman’s right to choose.  But one thing that became clear as the Nebraska legislature conducted the first of three scheduled debates on the “Pain-Capable Unborn Child Protection Act:” It is the intent of the bill’s sponsors to have it immediately challenged and brought before the Supreme Court as a chance to strike a blow against Roe V. Wade.

The legislation, sponsored by Republican Sen. Mike Flood and 22 others, attempts to use widely contested claims that a fetus has teh ability to feel “intense pain” (a phrase used repeatedly during the debate) as early as 20 weeks post-fertilization.  Opposing the bill was Democratic Sen. Danielle Conrad, who in her opening remarks brought to the legislature’s attention the dubious science being relied on as “fact,” as well as the lack of credentials held by the “unbiased expert witnesses” invited by Flood.  These “experts” included Theresa Collett, the St. Thomas law professor who is a key member of Minnesota Citizens Concerned for Life and also a Republican congressional candidate.

Supporters of the bill relied on a litany of anti-choice rhetoric, with some senators apologizing they could not eliminate abortion altogether but praising the bill as an excellent “first step,” to a declaration by one senator that people on both sides need to stop using the “F word” (i.e. fetus) because it was “offensive and demeaning.”  “He/she is an unborn child.  He is someone’s son.  She is someone’s daughter.  He is someone’s grandson.  She is someone’s granddaughter.” 

No female legislators stood in support of the bill.

The debate, rather than attempting to sway legislators from voting to pass the bill, instead focused on amendments to the bill that would allow maternal physical health exemptions and mental health exemptions to the ban.  As currently written, the only exemption to the ban is for the mother to be near death or irreversible physical harm, creating the most restrictive ban ever passed. Mental health exemptions are often used in the case of women who discover after the 20^th week that their child has an irreparable fetal anomaly that would endanger the pregnancy or cause great pain to the fetus if brought to term.

When presented with a chance to address such an exemption, Sen. Flood instead insisted that these cases of allowing abortion for “disabled” children should not be allowed.

Flood said he knew there was no more divisive issue than abortion. And it was particularly hard during the hearing on the bill to listen to situations of couples faced with advanced pregnancies in which unborn children had potentially fatal conditions. He didn’t want to hurt people with his bill, he said.

“But I also ask the question, why does a baby that’s going to be born with a disability become a better candidate for an abortion? Does their disability make them less human? Are they less deserving of the state’s protection?” he said.

Nebraska resident Tiffany Campbell, who testified before the committee previously that such a ban would have killed both of the fetuses she was carrying when she discovered she had a rare condition known as “twin to twin transfusion syndrome,” rather than losing just one to an abortion, responded to Flood.

“Speaker Flood referred to fatal fetal anomalies as ‘disabilities’ in the debate. Brendan, the baby my husband Chris and I aborted, didn’t have a ‘disability.’ He was on the verge of death himself and about to take Brady, who is now 3 years old, with him. We had the choice of saving one baby or burying two. That’s not a ‘disability.’

Speaker Flood, who introduced LB 1103, came up after my testimony and said he’d never heard of a case like mine. So now he’s amended the bill with what sounds like it might be a possible exception for women with conditions like mine (Twin-to-Twin Transfusion Syndrome). But what about all of the other cases that Flood and his colleagues have never heard of? The legislators trying to pass this bill clearly don’t understand the range of issues parents can face during a pregnancy. They’re still trying to strip parents of our right to make these difficult personal medical decisions. We’re the ones who should be making private healthcare decisions for our babies and families.

The lack of a mental health exemption became an extensive issue for Sen. Barbara Council, especially considering the body had voted earlier to pass a new law stating that women must have a mental evaluation before having an abortion, and that a doctor has the right to overrule her request if he deems she is not mentally or emotionally capable of handling the procedure.  “Women who seek abortions after the 20^th week are predominately women who wanted their pregnancies,” Council reminded the legislature. She then noted the inconsistency of senators ruling in one bill that the doctor was the ultimate authority on when a woman can have an abortion, then rule in another bill that the doctor’s opinion of a women’s mental health is superseded by that of the legislature.

“I’m disturbed about the absolute blatant disregard of this legislature for the health and wellbeing of the mother,” stated Council.

By the close of the debate the bill passed 38-5 and only one amendment was added: a moratorium on enacting the legislation until October of 2010, in order to provide both sides time to prepare for the court battle that will take place.  Bill proponents call it a “landmark” piece of legislation meant for the Supreme Court, and do not even pretend to believe in its constitutionality.  “As one senator stated, it may not be deemed constitutional but it’s never wrong doing the right thing,” [Sen. Ken] Schilz said. “I cannot agree more.”  Opponents agree that the bill will end up in the courts but that other states’ attempts to roll back abortion to any time before viability have ultimately failed.

The “Pain-Capable Unborn Child Protection Act” still requires two more rounds of debate within the next two weeks before it is sent to the governor, who is expected to sign it into law.

According to the latest release of information on abortion in Nebraska, there were no reports of any abortion procedure being done past the 20^th week in 2008.