An Idaho Senate panel approved legislation that would restrict most abortions after 20 weeks because it could inflict pain on fetuses. The panel approved the plan on a party-line vote, with Democrats trying to make changes to the plan.

The legislation would only affect a handful of abortions each year and could run up against constitutional challenges.

“Any life is worth the challenge of the status quo,” said Sen. Chuck Winder, R-Boise, who sponsored the limit on abortions. Winder received an opinion from the Idaho attorney general’s office saying that the ban on most abortions after the 20-week time could be unconstitutional because it imposes an undue burden on women seeking an abortion.

The attorney general’s office also said it’s unlikely that the legislation could lead to overturning Roe v. Wade, the U.S. Supreme Court case that created the legal framework for abortion laws. The opinion, written by Steven Olsen, the chief of the civil litigation division, wouldn’t speculate on whether the Supreme Court would uphold Winder’s legislation.

Opponents to the legislation also question its constitutionality. “It’s unconstitutional because it threatens women’s health,” said Hannah Brass with the American Civil Liberties Union of Idaho.

Abortions after the 20-week mark are rare in Idaho. According to the Bureau of Vital Statistics, there were six such abortions in 2009, out of the 1,650 reported. Dr. Darin Weyhrich, an OB/GYN in Boise who performs abortions, told lawmakers that he didn’t know of any doctors who perform elective abortions in Idaho after the 16th week of pregnancy.

When do fetuses feel pain?

Winder’s plan would ban abortions after the 20-week period, except when the mother’s life is in danger or she faces risk of a permanent physical impairment. The reason for the ban is the claim that fetuses can feel pain at that point. Supporters of the plan invited two doctors from outside the state to verify that fetuses can feel pain, though other doctors say they can’t feel pain until later.

“Based on the scientific evidence, it is my opinion that the human fetus possesses the capacity to experience pain as early as 20 weeks gestational age, and the pain perceived is possibly more intense than that perceived by mature newborns,” said Dr. Ferdinand Salvacion, who directs a pain management program at an Illinois hospital.

Opponents tried to cast doubt on Salvacion’s statement. “The science behind this bill is disputed,” said Marty Durand of Planned Parenthood of the Great Northwest.

A 2005 study published by the Journal of the American Medical Association said that, based on prior studies, fetuses likely don’t feel pain until their 29th week. Another backer of the Idaho legislation, Teresa Collett, a law professor at St. Thomas College in Minnesota, said the authors of that study work with abortion clinics.

“By the time a child can feel pain, it should be protected,” said Dr. Sean P. Kenney of Nebraska, who also supported the plan. He said the government should protect fetuses, comparing it to animal cruelty laws that protect cats and dogs from harm.

The legislation asserting a state interest in fetal pain would be a shift in abortion policy for the state. Current restrictions on abortion deal mostly with limits after a fetus has reached viability, which is the point at which it could be born. The attorney general’s office said the change may not pass constitutional muster, but Collett disagrees.

“There is a substantial basis to believe that this law is constitutional and that it will recognize the humanity of the unborn to feel pain, just as we do,” Collett said.

National trends

The Idaho legislation follows a Nebraska law that was passed last year. Similar legislation is being considered in other states, including Kansas and Minnesota. Ten states currently have requirements that women seeking abortions be told that fetuses feel pain, according to the Guttmacher Institute.

Other statehouses are considering different restrictions on abortion. South Dakota’s governor is expected to sign into law a plan that requires a three-day waiting period and counseling for women seeking abortions. Abortion rights groups have threatened to sue to stop that lawsuit

Texas lawmakers have passed different versions of a plan to require women to get a sonogram before they get an abortion. Ohio lawmakers are considering banning all abortions if a heartbeat can be detected. Ultrasounds showing fetal heartbeats were given during an Ohio House hearing earlier this month.

Idaho’s legislation is backed by the National Right to Life Committee, as well as state anti-abortion rights groups including Right to Life of Idaho, Idaho Chooses Life, and the Cornerstone Family Council.

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  1. A human life begins at conception when the fertilized egg begins to grow and develop. If that egg is aborted one day after conception, the life of a human being is terminated. Aside from the extreme case when a mother’s life is endangered, what is more important- protecting the parents’ lifestyle or their unborn baby’s life? Adoption is a caring option that protects a baby’s life and brings joy to the adopting parents. A woman’s right to choose occurs before conception; then her baby has the right to live.

  2. […] list include banning texting while driving, outlawing most abortions after 20 weeks of pregnancy due to fetal pain, making assisted suicide illegal, raising the tax on tobacco, including on Native American […]

  3. I completely agree with Ravell’s comments above, especially that “a woman’s right to choose occurs before conception; then her baby has the right to live.” The ability to feel pain is actually irrelevant. The point is two people’s rights are being considered: the woman’s and the baby’s. The actual situations are tough– most women would not consider an abortion unless under stressful emotional pain, unable to see a way to care for the other person–the baby. The women that I know that have had abortions were not adequately informed of the facts: about the life within her, what the fetus experiences during abortion, or what the woman herself may experience after an abortion. When I watched a fetus by ultrasound during an abortion, my heart ached –so defenseless–torn apart or having the liquids pulled out, leaving a shell of skin. However, I have also watched by ultrasound my own five children –most between 4 and 10 weeks development, and I could clearly see the little ones were alive –beating hearts, little hands and feet!

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