Nebraska has long played a pivotal role in the national abortion battle, mounting the first defense of the "partial birth" ban before the Supreme Court in 2000. Now the legislature is pushing another first-of-its-kind restriction—this time on procedures that cause "fetal pain." Currently the only abortion bans that have been deemed constitutional are based on viability, the point at which the fetus can live outside the womb (about 24 weeks). This bill, introduced last month, would set a new standard—blocking abortions after 20 weeks out of concern that the fetus may feel the procedure. (A 2005 review in The Journal of the American Medical Association found that fetal pain was "unlikely" before 28 weeks.) If it passes—a distinct possibility in a state that got an F grade from one national pro-choice group—the new law could set up another high-court challenge. LeRoy Carhart, the late-term-abortion specialist who brought the challenge in 2000, continues to operate out of an Omaha suburb.
But the proposal's immediate legacy may be more rhetorical than legal. Much like "partial birth"—a phrase coined by the National Right to Life Committee in 1995 to block a particular technique—the use of "fetal pain" is a potent bid to connect with voters on an emotional level. So far, no other states have followed Nebraska's lead, but the NRLC is claiming a PR coup in any case. As spokeswoman Olivia Gans says, "The opportunity to open a discussion is always favorable."