The Debate Around Fetal Pain and Abortions

Nebraska's new law is based on a fiercely contested concept

In a new turn for the abortion debate, lawmakers in Nebraska have enacted tougher abortion restrictions based on a fetus's capacity to feel pain. The laws prohibit performing abortions after 20 weeks except under extreme conditions. Anti-abortion groups say the laws are grounded in scientific research conducted since the 1973 Roe v. Wade ruling. But abortion-rights advocates argue the laws have no legal or scientific credibility.

• The Issue of Pain Is Valid, writes Mike Labossiere at Talking Philosophy: "Determining when the fetus can feel and suffer from such pain does seem important. After all, many moral arguments are based on the capacity of beings to experience pain. For example, stock arguments in the moral debate over the treatment of animals rest on the fact that many of the ways we treat animals (such as how we raise them as food) causes them pain and suffering. If the pain and suffering of animals matters morally, then it would certainly seem that the pain and suffering of fetuses would also matter morally."

• But Fetuses Can't Feel Pain at This Point, writes Amanda Marcotte at Slate: "Numerous states have used the 'fetal pain' argument to try to create obstacles for abortion providers. Minnesota, Oklahoma, and Texas, among other states, require doctors to tell patients that fetuses after 20 weeks gestation can feel pain. However, the scientific basis for this claim is questionable at best. A review of 2,000 medical journal articles published in the Journal of the American Medical Association in 2005 suggested that the absolute earliest a fetus could actually feel pain would be 28 weeks."

• This Debate's Not Likely to Go Away, writes Monica Davey at The New York Times: "The question of fetal pain... is one of intense, unresolved debate among researchers and among advocates on both sides of the abortion question."

• The Courts Will and Should Strike This Down, writes Sarah Kliff at Newsweek: "The law, approved by the state legislature earlier today and expected to be signed by Gov. Dave Heineman, is a landmark in that it directly challenges one of the key tenets of Roe v. Wade: the viability standard. In Roe, the Supreme Court recognized viability—the point at which the fetus can live outside the womb—as the point at which states have the right to ban abortion. Will the courts turn on almost 40 years of precedent, and trade in the viability standard for one that considers the possibility of fetal pain a more 'compelling' point? It’s doubtful: the court has, on numerous occasions, reaffirmed its commitment to the viability standard."

• The Law Makes Sense, writes Wesley Smith at First Things: "Nebraska’s new law seems entirely reasonable to me, particularly since 20 weeks is potentially (barely) within the potential viability time period... No other right is absolute–even those expressly stated in the U.S. Constitution and not based on 'penumbras.' Abortion shouldn’t be either."