(VIDEO) Unconscionable Cruelty: Nebraska’s 20-Week Law Meets the Real World

This article is crossposted from Advancing New Standards in Reproductive Health (ANSIRH).

Editors Note: This article was changed at 10:25 am March 17 to correct a sentence stating Frances Kissling founded Catholics for Choice. She is a former president of the organization.

“Nebraska’s new abortion law forced Danielle Deaver to live through ten excruciating days, waiting to give birth to a baby that she and her doctors knew would die minutes later, fighting for breath that would not come. And that’s what happened. [After the baby girl was born]… Deaver and her husband Robb watched, held and comforted the baby as it gasped for air, hoping she was not suffering. She died 15 minutes later.”

This deeply sad—and cruel—incident, which occurred several months ago in Nebraska, and was reported recently in the press, is not only an obvious tragedy for the parents involved, but a teachable moment for those who are following the consequences of the latest round of extreme abortion policies put in place by antiabortion legislators. Ms. Deaver was nearly 23 weeks pregnant when she found out she had suffered anhydramnios, a premature rupture of the membranes before a fetus has achieved viability. This diagnosis meant that if she carried to term her baby would almost certainly die in great discomfort shortly after birth.

The Deavers sought an abortion. But Nebraska has recently passed a law that forbids abortions after 20 weeks, on the scientifically disputed ground that 20 weeks marks the point at which fetuses can feel pain. (The view most accepted in the medical community comes from an article published in the Journal of the American Medical Association by a group of scientists at the University of California, San Francisco, who concluded that a human fetus probably does not have the capacity to experience pain until the 29th week of pregnancy at the earliest). The only exception permitted by Nebraska’s law is a threat to the pregnant woman’s life. Several other states are now considering similar legislation.

The first, most obvious, lesson to be drawn from this incident is the growing fanaticism among anti-abortion state legislators and advocates with respect to abortion regulation, and their corresponding indifference to parental wishes. Like numerous other cases of later abortion with which I have become familiar in the course of my research, the Deavers sought an abortion, in this case of a much-wanted pregnancy, precisely to avoid the kind of suffering that their baby ended up enduring.

Nebraska State Senator Mike Flood

Nebraska State Senator Mike Flood

But the parents’ wishes, not to mention the newborn’s agonizing 15 minutes of struggle before she died, are of little consequence to those who promote such measures. As Nebraska legislator Senator Mike Flood told the press, “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 it is still a life.” A leader of Nebraska Right to Life similarly told the press that it was “more humane for the baby to die in a loving manner with comfort care and in the arms of her parents than by the intentional painful death through abortion.” Reading these statements, I could not help but be reminded of a very different response to parents, in situations similar to the Deavers, that was told to me by a chaplain who worked with the late Dr. George Tiller in Wichita, offering pastoral counseling to those receiving later abortions because of fetal anomalies: “This was holy work we were doing here. We gave the parents the gift of not having to make their babies suffer.”

A second lesson that emerges from this incident is the misguided nature of the recent calls by two prochoice writers for their colleagues in the abortion rights community to relent on the defense of post-first trimester abortions. Both Frances Kissling, former president of Catholics for Choice, and William Saletan,* of Slate.com, have argued that the prochoice movement is losing ground—“caught in a time warp” as Kissling put it in a widely disseminated Washington Post op-ed—because of its refusal to acknowledge “the existence and value of the fetus.” In order to regain public support, both authors suggest, the movement must be willing to question the legitimacy of abortions in the second trimester and beyond. To be sure, when Kissling wrote that “we need to firmly and clearly reject post-viability abortions except in extreme cases,” she also went on to list several exceptions, including “when the fetus suffers from conditions that are incompatible with a good quality of life.”

Kissling and Saletan’s call for a retreat on procedures after the first trimester may indeed be good politics, in that the American public as a whole is considerably more supportive of abortion in the first trimester than later. But the Nebraska case illustrates why their proposal is such bad policy. As noted above, Kissling makes quite clear her view that an abortion for a fetus in a situation similar to this Nebraska case would be justified, at 23 weeks and presumably later. Probably most Americans, when confronted with the facts, would reach the same conclusion. But the only relevant point here is that a majority of Nebraska legislators, in their refusal to allow any exceptions except a threat to the woman’s life, did not!

Kissling and Saletan offered their proposals as if there exists in the United States universal consensus as to what constitutes justifiable exceptions to abortion laws. But in my view this approach is naïve, considering the enormous politicization of the abortion issue. As just mentioned, the Nebraska legislators did not see fit to make fetal anomalies an allowable exception to the 20-week cutoff date.

Moreover, even when legislation does contains such exceptions as “threats to a woman’s life,” “serious health risks” to a woman, or “poor quality of life” for a fetus if the pregnancy continues, what these exceptions actually mean in practice are not always clear, and rely on subjective judgments by physicians—and often lawyers. And that is why the legal as well as legislative climate in the particular place where a contested pregnancy occurs is so consequential. Consider this press account of the deliberations of Danielle Deaver’s physician after she and her husband requested an abortion.

Dr. Todd Pankcatz, her primary physician…. said he asked several attorneys to review the law to see whether he could fulfill the family’s request to terminate the pregnancy…. Because of the uncertainty, Pankcatz said he was advised not to fulfill the family’s request. ‘There were criminal charges that I would potentially face by intervening in a pregnancy like this,’ Pankcatz said. Physicians who break the law face felony charges that could result in five years in prison and a $10,000 fine.”

For me, the overriding lesson to be drawn from the Deavers’ tragedy is that abortion rights advocates have to keep explaining to the American people why ideologically driven abortion restrictions have no place in a compassionate society.

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  • exdem

    I’m confused.  If the Deavers’ fetus could not feel the pain of being aborted at 23 weeks and according to this article could not feel pain until 29 weeks, how could their newborn have suffered at 24 weeks? It makes no sense that the capability to feel pain exists after birth but not before birth………..

  • plume-assassine

    It’s important to understand that a fetus is different from a newborn. It’s unclear whether their newborn experienced pain, but it is entirely possible. At 23 weeks, within the womb and outside, the brain is beginning to form the necessary pathways to experience pain. However, the fetus at 23 weeks is still incapable of feeling pain because it is kept unconscious due to the hormonal environment of the womb. A preemie of 23 weeks – no longer in the environment of the womb – is conscious, and may be able to experience pain.

    Here is some relevant info:


    Brain circuitry responsible for relaying some types of sensory information may begin developing around 24 weeks’ gestation. However, the presence of the “wiring” does not necessarily mean that the circuits are actually functional. Assuming a relationship between the two is not supported by scientific evidence.



    Studies suggest that the first pathways associated with pain perception are not present until well into the third trimester. There is increasing evidence that the fetus never experiences a state of true wakefulness in utero and is kept in a continuous sleep-like unconsciousness or sedation, by the presence of its chemical environment. This state can suppress higher cortical activation in the presence of intrusive external stimuli. Although abortion opponents claim that studies of hormones triggered by stress indicate that a fetus feels pain, this is untrue. Those same hormones may also be triggered by stress during non-painful situations. Thus these studies do not support the existence of fetal pain.


    Current theories of pain consider an intact cortical system to be both necessary and sufficient for pain experience.9,10 In support are functional imaging studies showing that activation within a network of cortical regions correlate with reported pain experience.9 Furthermore, cortical activation can generate the experience of pain even in the absence of actual noxious stimulation.10 These observations suggest thalamic projections into the cortical plate are the minimal necessary anatomy for pain experience. These projections are complete at 23 weeks’ gestation. The period 23-25 weeks’ gestation is also the time at which the peripheral free nerve endings and their projection sites within the spinal cord reach full maturity


  • crowepps

    One of the most aggressive anti-abortion legislators who supports House File , Rep. Glen Massie, R-Des Moines, said Elizabeth Deaver deserved the chance that Nebraska’s law gave her.

    “In life, amazing things happen,” Massie said, noting examples of when unborn children have beaten the odds of a dire medical prognosis. “I know it may be a one in a bazillion snowballs’ chance, but if I were that snowball, I’d want that chance.”

    Rep. Massie seems to be under the impression that the chance of having that “one in a bazillion” miracle justifies creating 999,999,999 incidents of unnecessary suffering.  But then, it’s not going to be HIM doing any of the suffering.

  • ldan

    Given states cutting off funding to aid parents of children with disabilities and other health issues, he’s not just ignoring the unnecessary suffering of those that don’t manage that miracle of survival, but those who don’t also get the even less likely miracle of surviving without long-term health effects.


    Once again, they’re blessed miracles until they’re born, and then they’re on their own. Somehow, their god requires a whole bunch of busybodies helping him/her out with saving the fetuses, but will take care of the babies without their help?

  • ack

    It makes perfect sense to me that the fetus is unconcious. Think about it; even in adulthood, there is something incredibly calming and relaxing about warm/hot water, particularly baths. It sedates us. Maybe our bodies just get triggered back to a ghost of that unconciousness.


    This isn’t based on anything scientific, I just think it makes sense. :)

  • heather-corinna

    That couple is so, so amazing.

    What incredible people, saying such spot-on things, working to foster change despite having to do so from such a painful place. Can’t express my admiration for them: just wow.

  • arekushieru

    As I stated on another thread, plume, just because one can’t experience pain, doesn’t mean one can’t suffer.  There are different kinds of stress, all of them related to suffering, but not necessarily so related to any type of experience of pain.  Still, the fact that there IS increasing evidence to support the idea that the chemical environment suppresses fetal consciousness until peripartum, in the majority of cases (one such exception being described in the very scenario mentioned in the topic of this thread), suggests that the fetus can’t experience stress/suffering, for the most part, either, until that stage.  Which makes it doubly ironic that Anti-Choicers are only opposed to fetal pain up until the moment they can actually experience it…. 

  • equalist

    It’s fairly simple.  If the fetus can feel pain, then it can feel pain DURING childbirth.  It makes sense that the fetus cannot feel pain until after birth and removal from the environment of the womb because otherwise the pain of being pushed through the birth canal and having the head crushed to the point that the plates of the skull shift and overlap would be excruciating, wouldn’t you think?

  • progo35

    There is no evidence from this article that indicates that the child in question was in pain, or that such pain cannot be controlled after birth.That’s why we have pallative care and drugs like morphine. One again, newborns with severe disabilities are used to push late term abortion. Disgraceful.

  • ack

    Severe disabilities? This child had no chance at life. Insted, both the parents AND the child were forced to endure what THE PARENTS termed torture because of misguided, misinformed law. They were in such a terrible position they didn’t even know what they should pray for.


    Morphine? While TV has shown me that morphine is pretty awesome for people in pain, most women probably don’t want to birth a child who lives a whole 15 minutes in a morphine-induced haze, when the alternative of a painless abortion was available earlier.


    In light of this post, I certainly hope that you spend more time advocating for funding for programs for children with disabilites than you do advocating against abortion.


    Stop playing armchair obstetrician-gynecologist and let the doctors do their jobs.

  • carole-joffe

    Thanks to the many thoughtful comments. I would simply add to what has been said is that I assume the most horrible thing the newborn suffered, and what must have been horrific for the parents to watch, is the baby gasping for breath because her lungs were so underdeveloped.  carole

  • arekushieru

    And another question that should be asked of this commenter is: Why, then, is Nebraska attempting to pass such a law?

  • progo35

    Again, the lack of air is why comfort care is provided: to alleviate pain and suffering to a baby who is going to die soon after birth. Also, again, given the debate over fetal pain, we have no conclusive info indicating that a late term abortion would have been “painless” for the child involved.

  • progo35

    Moreover, ack, I work with children in foster care with all manner of disabilities as an advocate who takes the role of a parent in educational decision making. That’s quite different than what we’re discussing here, but since you brought it up, let me make it quite clear that I spend quite a bit of time advocating for services for the disabled.

  • progo35

    Moreover, ack, I work with children in foster care with all manner of disabilities as an advocate who takes the role of a parent in educational decision making. That’s quite different than what we’re discussing here, but since you brought it up, let me make it quite clear that I spend quite a bit of time advocating for services for the disabled.

  • ack

    I’m glad you chose the line of work you did. It’s vitally important. And I’m sure you know this, but people with disabilities are at significant risk for sexual abuse, so making sure your agency has strong policies in place to prevent and address abuse is an important and ongoing process. If you haven’t had a training on the issue in awhile, ask your supervisor to contct your local sexual assault agency!


    I hope that your advocacy continues when you’re in the voting booth. In most districts, voters have a choice between a candidate who actively supports social services for people in need, and a candidate who actively works to restrict women’s access to abortion while slashing social services.

  • goatini

    Not only does he want for women to NOT be able to terminate a severely defective fetus… but we now know WHY.


    And it’s not because of his “compassion”, since he has none for living, breathing women.


    It’s because a decrease in his client base would not be good for his business.


    Despicable.  Like p0verty p!mp Bojaxhiu was despicable.


  • arekushieru

    And we don’t have any conclusive evidence that it would be.  But, even if it were, you would force them to experience childbirth, something that would be even more excruciating than abortion, because the fetus is anaesthetized in late term abortions, AS we’ve also said.  Oy.

    And suffering for ten-fifteen minutes versus suffering for a brief second.  Which would you choose?  If the former, not everyone would choose that, thanks.

  • equalist

    There’s a HUGE difference between “disabled” and “incompatible with life”.  Downs syndrome is a disability.  Autism is a disability, being born without lungs, important internal organs absolutely needed for survival, or a large portion of the baby’s skull or head are conditions imcompatible with life.  When a child is born with an actual disability, there’s an importance of quality of life.  When a child is born with a condition incompatible with life, quality of life is no longer an issue because the short life outside the womb that the child endures is nothing but terrible pain and suffering.  Some parents choose to give birth to the child as a part of having closure and the desire to spend as much time with the child as possible, but for others, their desire is to prevent their child from having to experience such suffering.  Can we really blame parents for trying to prevent their children from feeling pain?