OMAHA, Neb. — Inspired by a contentious Nebraska law, abortion opponents in five other states have won passage of measures banning virtually all abortions after five months of pregnancy.
The late-term bans — based on the premise that fetuses at that stage can feel pain, a view that has been disputed — are among a record wave of more than 80 restrictions aimed at reducing access to abortion, all of them approved so far this year in state legislatures. Other measures expand pre-abortion counseling requirements, ban abortion coverage in new insurance exchanges, and subject abortion clinics to tough new regulations.
With only a few legislatures still in session, each side in the abortion debate is now assessing the potential impact of the new laws. They may not drastically slash the overall number of U.S. abortions — 1.2 million a year at last count — but they have emboldened anti-abortion activists, angered abortion providers, and will likely make decisions all the more wrenching for women affected by the late-term bans.
"In almost every instance at that late stage, something has gone terribly wrong with what typically was a very wanted pregnancy," said Peter Brownlie, head of Planned Parenthood of Kansas and Mid-Missouri. "What we see are parents in anguish over some type of medical condition — and these very cruel laws double or triple that anguish."
Kansas is one of the five states — along with Alabama, Idaho, Indiana and Oklahoma — that enacted abortion bans this year modeled after the groundbreaking fetal-pain bill passed in Nebraska in 2010. The Kansas ban is effective after 21 weeks, the others after 20 weeks. Exceptions are allowed when the mother's life is at risk or she faces severe physical impairment.
The bills depart from the standards established by the U.S. Supreme Court which allow states to limit abortions when there's a reasonable chance the fetus could survive outside of the womb, generally considered to around 23 or 24 weeks.
Mary Spaulding Balch, legislative director for the National Right to Life Committee, said she was pleased the late-term bans got attention from lawmakers amid widespread fiscal problems.
"If we have to pass them in 50 states — and that's the plan — we will do that," she said.
In Nebraska, only one woman has come forward publicly to say the fetal-pain law prevented her from terminating a pregnancy. Danielle Deaver, of Grand Island, said she was denied that option at 22 weeks after she learned the baby was nonviable, ended up going into natural pre-term labor, and gave birth to a girl who died after 15 minutes.
"It was very frustrating and added to our grief because the waiting compounded everything," Deaver said in an interview earlier this year.
Anti-abortion activists acknowledge that some late-term cases can be difficult, but believe the bans are warranted for the sake of the fetus.
"The abortion industry always likes to run to the hard cases," said Julie Schmit-Albin, executive director of Nebraska Right to Life. "Yes, there are situations where tragedies occur, but that doesn't mean you allow the killing of unborn children beyond 20 weeks who can feel pain."
She contended that many women in the past who sought late-term abortions cited their own psychological concerns and were not faced with a fetal anomaly.
The Guttmacher Institute, a research organization that supports abortion rights, estimates that only about 1.5 percent of all abortions in the U.S. take place after 20 weeks of pregnancy. That would be roughly 18,000 annually as of the 2008, the last year with nationwide figures — and probably only a few hundred, at most, in states enacting the new bans.
"It's very small percentage — but it's a lot of distress," said Elizabeth Nash, who tracks state legislation for the Guttmacher Institute.
Critics of the late-term bans say other women in predicaments like Deaver's may be forced to choose between traveling out-of-state to get an abortion or proceeding reluctantly with a pregnancy after learning the fetus has a severe anomaly.
For pregnant women in Kansas who want an abortion after 21 weeks, that could mean a trip to Colorado or New Mexico.
"Some people will probably just give up — the logistics, the expense seems overwhelming," Brownlie said. "But in general, if women have decided the best thing for their family is to end a pregnancy, they will go to great lengths to do so."
Of all the anti-abortion measures introduced this year, one of the most ambitious remains pending in Ohio's Republican-led legislature. It would ban abortions after the first detectable fetal heartbeat, which can occur within six weeks of conception.
Ohio Gov. John Kasich signed a different bill Wednesday that would ban abortions after 20 weeks if the doctor — after a mandatory test — determines that the fetus is viable. There's no exception for the health or life of the mother, although those reasons may be used as a defense if a doctor is prosecuted.
Abortion-rights advocates say the roughly 200 late abortions performed in Ohio each year are often complex, involving decisions that should be left to women and their doctors.
"I continue to be amazed that legislators believe they should have a voice when I take care of my patients," said Dr. Catherine Cansino, an obstetrician-gynecologist from Columbus. "They should not dictate which medical interventions are available or not."
She cited the case of a pregnant patient who wrestled with whether to have an abortion because her fetus had a lethal anomaly.
"Our state's legislators have decided to force women in these situations to endure weeks, months, of a doomed pregnancy," Cansino said in an email. "What a cruel situation to inflict on them and their families."
Overall, according to abortion-rights supporters, the new laws will have the most impact on low-income and rural women, especially in states which already have few abortion providers. In addition to the late-term bans, other new restrictions include:
—Regulations in Kansas specifying what drugs and equipment abortion clinics must stock and setting requirements for room sizes and temperatures. Two of the state's three abortion providers sued after they were unable to meet the new standards, and a federal judge has blocked the rules until the lawsuit is resolved.
—A Texas law requiring doctors to conduct a pre-abortion sonogram and describe the fetus' features to the pregnant woman. Doctors who don't comply would face loss of their medical license and possible prosecution. The law doesn't allow women to opt out, with exceptions for cases of rape or incest.
The New York-based Center for Reproductive Rights has filed a lawsuit to overturn the law, which is scheduled to take effect Oct. 1.
—A South Dakota law, now under a preliminary injunction, requiring women seeking abortions to face a three-day waiting period and undergo counseling at pregnancy centers that discourage abortion.
—A law in North Dakota, also subject of a lawsuit, that critics say would prevent the state's only abortion clinic from using medicines to induce abortions.
Another type of law — enacted this year in Wisconsin, Indiana, Kansas and North Carolina — eliminates public funding for Planned Parenthood. The funds had been earmarked for family planning and other non-abortion services, but Planned Parenthood became a target for cutoffs because it also is the nation's largest provider of abortions.
Rachel Sussman, a Planned Parenthood policy analyst, says the cutoffs could backfire if they undermine family planning programs and increase the number of unintended pregnancies that result in abortions.
Planned Parenthood has filed suit to challenge the funding cutoff in Indiana — one of numerous pending legal challenges to the array of new laws.
So far, however, abortion-rights advocates have not filed suit against any of the Nebraska-style fetal-pain laws — a fact likely to encourage their spread to even more states.
"We will challenge them when the right circumstances present themselves," said Nancy Northup, president of the Center for Reproductive Rights. "They're unconstitutional."
The Nebraska law targeted Dr. LeRoy Carhart, whose clinic near Omaha was one of the nation's few to provide late-term abortions. After the law passed, he opened a clinic in Germantown, Md.
While some doctors contend that fetuses can feel pain after 20 weeks, the American Congress of Obstetricians and Gynecologists says it knows of no legitimate evidence showing a fetus can ever experience pain.12 comments on this story
The Supreme Court, which established the nationwide right to abortion in its landmark 1973 Roe v. Wade ruling, has made clear in subsequent rulings that states can restrict the procedure after viability. It has not addressed the issue of fetal pain.
The anti-abortion movement holds out hope that Roe v. Wade will one day be overturned, but meanwhile many activists are enthusiastic about the state-by-state approach of enacting laws that chip away at abortion access.
"We talk about accumulating victories," said Charmaine Yoest, president of Americans United for Life. "Any time you want to make long-term change, on an issue that's been extremely controversial, you do it by developing momentum. You don't change something all at once overnight."
David Crary reported from New York City.