Kansas lawmakers plan to consider legislation modeled on a new Nebraska law that restricts late-term abortions based on the claim that fetuses can feel pain after 20 weeks.
"I think the issue of fetal pain is an important one, and one that is becoming more and more a part of the debate," said Rep. Lance Kinzer, R-Olathe, who has championed late-term abortion reforms for the past several years.
"I think it's reasonable to expect that same kind of discussion is going to take place here."
Nebraska's law, which took effect in October, outlaws abortion after 20 weeks of pregnancy based on the notion of fetal pain. It allows exceptions when a woman's life is in danger or to save an additional fetus in the womb — but not for a woman's mental health or for discovery of a fetal anomaly.
The law marks the first time a state has outlawed abortion so early in a pregnancy without an exception for the woman's health.
Abortion opponents call it model legislation for other states, and say it could provide a direct challenge to Supreme Court precedents that restrict government's ability to prohibit abortion before a fetus can survive outside the womb.
The law shut down LeRoy Carhart, the abortion provider from Omaha who had planned to expand his practice outside Omaha and provide late-term abortions to women across the Midwest. Carhart, who expressed interest in coming to Kansas after the murder of Wichita abortion provider George Tiller last year, has since opened a clinic in Maryland.
Lawmakers in Indiana, Iowa and Kentucky have begun drafting bills similar to Nebraska's law.
Before Kansas lawmakers consider such a bill, Kinzer said, they will take up a host of previous abortion measures that were vetoed by former Govs. Kathleen Sebelius and Mark Parkinson, and that are more likely to be approved by incoming Gov. Sam Brownback.
Those measures generally relate to tightened reporting requirements for late-term abortions, remedies against doctors who violate the laws, and provisions allowing a woman, her husband or parents to sue a doctor if they thought a late-term abortion was performed illegally.
After that, Kinzer said, "A specific bill, or a couple of bills, addressing fetal pain is a definite possibility. I certainly believe the issue of fetal pain is one we need to discuss and see if we can develop some consensus on."
Rep. Brenda Landwehr, R-Wichita, said the Legislature will take up the issue in due course, but that lawmakers also have to consider other priorities such as the budget and health care.
"I think we'll also see an emphasis on adoption as well," she said. "There's a lot that goes into pro-life besides the abortion piece."
Peter Brownlie, CEO of Planned Parenthood of Kansas and Mid-Missouri, said his organization has expected efforts in the Kansas Legislature to pass a Nebraska-style law because both houses have significant anti-abortion majorities and a new governor that supports them.
Planned Parenthood has been thinking about how to deal with the issue, he said.
"Our major message will continue to be that if people in the Legislature are serious about addressing the issue of abortion and trying to reduce abortion, they should try to do that through prevention. The best thing they could do is provide access to family planning and sex education," Brownlie said.
Kari Ann Rinker state coordinator of Kansas NOW, said her organization will fight anti-abortion legislation in Topeka. The organization has been successful stopping some measures in committee by presenting factual information, she said, and the notion of fetal pain lacks medical authority.
"It's another stark reminder that it's not about facts, it's about ideology," Rinker said.
Abortion critics hail Nebraska's law as the most prominent and promising outcome of a 5-4 Supreme Court decision in a 2007 case, Gonzales vs. Carhart.
The decision turned away Carhart's challenge to the federal ban on "partial birth" abortion, and appeared to mark a significant change in the high court's balancing of a woman's right with the government's interest.
The ruling was a key moment in the emerging identity of the court headed by Chief Justice John Roberts. Roberts and Justice Samuel Alito, also nominated by President George W. Bush, have become part of a conservative majority willing to reconsider the court's position on social and political issues.
Most states' abortion bans, including Kansas', begin at 22 or 24 weeks, which in most cases is considered the earliest a fetus could survive outside the womb. The Nebraska law seems to provide a direct challenge to Supreme Court precedent that government may not unduly burden a woman's right to an abortion before viability.
Nebraska's law was built on a premise that some studies indicate 20 weeks is the point at which a fetus may begin to experience pain, although there is medical disagreement on that point. The American Congress of Obstetricians and Gynecologists says it knows of no legitimate evidence showing a fetus ever can experience pain.
The Center for Reproductive Rights' president, Nancy Northup, said the Nebraska law is not grounded "in either the Constitution or science." She said she believes it to be "clearly unconstitutional" and added, "The fact that it has not been challenged yet does not mean that it won't be."
Some abortion rights supporters said privately that a challenge might come if another state adopts Nebraska's model.
"We can't say with any certainty that this is going to meet constitutional muster," said Nebraska Right to Life executive director Julie Schmit-Albin. "But you know what, from our perspective, if we aren't bucking up against Roe, we're not doing our job.
"So we did our job in Nebraska and now it's time for the other states to do their job."