Implications of Nebraska’s ill-conceived fetal pain law

Danielle and Robb Deaver are living proof of the awful reality of Nebraska’s ill-conceived “fetal pain” law. The law, which took effect last October and is the only one of its kind in America, prohibits abortions in the state after the 20th week of pregnancy. It is based on the discredited notion that a fetus may feel pain at that stage of development. Physicians who break the law face felony charges that could result in five years in prison and a $10,000 fine.

Danielle Deaver, a nurse, was 22 weeks pregnant with her second child when her water broke. Doctors determined that her membranes had ruptured and there wasn’t enough amniotic fluid to support the fetus.But because of Nebraska’s law, Deaver could not obtain an abortion and was forced to live through “10 excruciating days” waiting for her extremely premature fetus to be born even though doctors were sure it would never survive. When finally delivered, the one-pound, ten-ounce baby girl gasped and struggled for air, dying 15 minutes later in her mother’s arms. Tragically, the Deavers had sought an abortion to avoid just such an excruciating end; they were concerned that the infant would suffer while it died, trying to breathe.

“The outcome of my pregnancy, that choice was made by God. I feel like how to handle the end of my pregnancy, that choice should have been mine, and it wasn’t because of a law,” Deaver told the Des Moines Register.

That doesn’t deter the author of the Nebraska law, Speaker Mike Flood, a Republican, who said he feels confident that the statute worked as planned in the Deaver’s case:

“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 is still a life,” Flood told the Register.

The sanctimonious nature of that remark—in direct response to a couple who suffered through a wrenching experience—is characteristic of the ideological blather we hear from many (mostly male) legislators who champion these laws. The rare woman who chooses to have a later-term abortion (some 89% of abortions are performed before 12 weeks) is cast by people like Flood as either too clueless to do something about their pregnancy until it’s too late or somehow irresponsible, not willing to accept the challenges of being a parent to a fundamentally disabled or unviable baby.

Danielle Deaver is the antithesis of this characterization. She and her husband Robb suffered through three miscarriages—one after 16 weeks—before Danielle finally gave birth to her first child, a son. To say she was happy to get pregnant a second time is an understatement—and to suggest that she wasn’t willing to do everything it took to keep that baby would be a grievous lie. “I said, ‘OK, what do we need to do? Do I need to stand on my head for the next four months? Whatever it is I need to do,’” Danielle told the Register.

We are hearing more of these voices speaking from the depths of pain as conservative attacks on women’s reproductive rights ratchet up. The courageous speech about her own 17-week abortion made by Rep. Jackie Speier (D-CA) on the House floor last month was both highly public and poignant. I wrote about the recent wave of anti-choice legislation moving through the House in this recent post. But Speier’s point needs to be repeated in light of the Deaver’s experience and those of other couples or women who could be affected by more restrictive legislation working its way into practice. She spoke about being told that her very much-wanted baby had moved down the birth canal and would not survive:

“I lost the baby” says Speier (you can watch a video of her testimony here). “And for you to stand on this floor and suggest that somehow this is a procedure that is either welcomed or done cavalierly or done without any thought, is preposterous.”

Images of fetuses grimacing and screaming in the womb are emotionally-charged but ultimately deceptive. The American Congress of Obstetricians and Gynecologists says “it knows of no legitimate evidence showing a fetus can ever experience pain.” And in March 2010, the Royal College of Obstetricians and Gynaecologists published a lengthy review of fetal pain research and concluded that a fetus cannot experience pain “in any sense” before 24 weeks gestation. Even after that, according to the report, “there is increasing evidence that the fetus never experiences a state of true wakefulness in utero and is kept, by the presence of its chemical environment, in a continuous sleep-like unconsciousness or sedation.”

In Roe vs. Wade, the Supreme Court set the age of viability—when a fetus has any chance of surviving outside of the womb—at 22 to 24 weeks. But none of this is deterring abortion opponents in Kansas, Iowa, Florida, Kentucky, New Mexico, Oklahoma, Oregon, Indiana and Georgia, where fetal pain legislation is being crafted and introduced that would ban abortion at or after 20 weeks. It seems that science and the Supreme Court aren’t worthy concerns for supporters of these laws. They are trying to insert an inflexible law into a devastating and a private situation that should be decided on an individual basis by a mother and her physician.

As women find themselves increasingly under attack from conservative legislators who would like to chip away at the right to choose until there literally is no choice, we need more Americans like Speier and the Deavers who will speak out against ideology-based laws that cause more pain and suffering than they are designed to prevent.

Naomi Freundlich is a senior research associate of The Century Foundation who blogs at Health Beat, where this post originally appeared.

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