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Minnesota's Anti-Choice Community Proposes "Fetal Pain" Law As Vehicle for Anti-Abortion Legislation

Now that anti-choice politicians have a majority in the House and Senate in Minnesota, reproductive health activists have been waiting patiently to learn what restrictions to abortion access would become their priority. 

We were unsurprised when Republicans introduced a bill to end taxpayer funding, knowing full well that challenging Doe V. Gomez would be high on the list. And it makes sense that they have focused on keeping funding for the Positive Alternative Act, which provides money to crisis pregnancy centers and pro-life advocacy groups without any actual reporting or accountability as to how the money is spent.

But when it comes to a bill that will actually effect when a women can receive an abortion, and how she goes about getting the procedure done, there were so many options to choose from it was unclear which way they would go: personhood, mandatory ultrasounds, extra reporting requirements?

Instead, Minnesota's anti-choice community has decided to focus on a 20 week "fetal pain" abortion ban in a bill introduced by Sens. Gretchen Hoffman of Vargas and Warren Limmer of Maple Grove, and House Majority Leader Matt Dean of Dellwood, Rep. Mary Liz Holberg of Lakeville, and House Speaker Kurt Zellers of Maple Grove.

Although distressing, the news of a push for a "fetal pain" ban isn't entirely a surprise. Minnesota Citizens Concerned for Life announced intent to push for a ban at their annual March for Life event at the Capital on the anniversary of Roe V. Wade, calling the ban a legislative priority.  Referring to it as the "Pain-Capable Unborn Child Protection Act," the same name as the bill in Nebraska that the ban is based on, MCCL argues that the state already has acknowledged the "evidence of pain" due to its law that requires doctors to tell patients seeking late term abortions that the fetus can feel pain and to offer anesthesia:

Fetal pain acknowledged in Minnesota lawWoman's Right to Know
Requires women considering abortion to be informed that "some experts have concluded that the unborn child feels physical pain after 20 weeks gestation."

Unborn Child Pain Prevention Act
Requires women considering abortion after 20 weeks gestation to be informed "whether or not an anesthetic or analgesic would eliminate or alleviate organic pain to the unborn child caused by the particular method of abortion to be employed.

Legislation is necessaryThe fact of fetal pain is already established in Minnesota law, but pain-sensitive unborn children remain unprotected.

The Pain-Capable Unborn Child Protection Act would prohibit abortion after 20 weeks from fertilization in order to protect pain-capable unborn children from excruciating deaths.
(There are exceptions when abortion is necessary to save the life of the mother or to avert a serious risk of substantial and irreversible impairment of a major bodily function.)

Similar legislation was passed and signed into law in the state of Nebraska in 2010. To date, the Nebraska law has not been challenged in court.

Of course, multiple scientists have weighed in, both during and after the Nebraska legislation passed, explaining the faulty science behind claiming fetuses can feel pain. The evidence used to push legislation is in fact so shaky that one Iowa legislator held up the bill in committee when Iowa attempted the same ban, asking for some "credible" science to back up the claims.

A legislative proposal to further restrict Iowa abortions met resistance during its first legislative meeting today where one lawmaker made repeated requests that advocates of the bill back their assertions with credible scientific proof.


Nebraska’s law is based on the idea that fetuses can feel pain after 20 weeks. Abortion opponents point to research that indicates nerve endings form early in development and enable the fetus to feel pain.  Opponents, however, point to conflicting research that shows a fetus never experiences a state of true wakefulness and instead is kept in a state of sleep-like unconsciousness by chemicals in the uterus.


[Rep. Beth] Wessel-Kroeschell questioned the language, intent and scientific evidence of more than a dozen points in the bill. The subcommittee agreed to reconvene sometime next week after members have a chance to gather information to answer the questions.

Iowa's "fetal pain" ban is still on a rocky path to becoming law, in part due to other anti-choice politicians, who are refusing to support it because they want a ban on all abortion to be passed instead.  However, other "fetal pain" bills are being discussed in Kansas, Arkansas, Oklahoma, Georgia, Indiana and Kentucky.

Although the focus of the bill is a 20 week post fertilization, various sections of the law encompass many of the other issues one might have expected to see in other anti-choice legislation.  The bill redefines an unborn child or fetus as "an individual organism of the species homo sapiens from fertilization until live birth," making it in essence a cloaked personhood amendment as well as an abortion ban.  Section six of the bill makes ultrasounds mandatory before all abortions regardless of how far along the woman is in her pregnancy, and mandates that those ultrasounds must be performed by a physician only.  And, should a woman meet the criteria of danger of life or physical injury necessary to have a 20 week gestational age abortion, section 7 subdivision 2, the legislature had determined that they get to choose the type of abortion the woman may have, rather than her physician.

The physician shall terminate the pregnancy in the manner which, in reasonable medical judgment, provides the best opportunity for the unborn child to survive unless, in reasonable medical judgment, termination of the pregnancy in that manner would pose a greater risk either of the death of the pregnant woman or of the substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions, of the woman than would other available methods.

Finally, if a woman somehow manages to get an abortion after 20 weeks gestation, any family member, from the father of the child to her younger siblings, has the legal standing to take the doctor to court and ask for punitive damages, according to section 8.2.

Now that the bill has been introduced, should it pass both the House and Senate it is very likely to be vetoed by the state's pro-choice governor.  There could be a veto override, but that scenario is somewhat unlikely considering the unpopularity of bills that force women who primarily are carrying wanted pregnancies of fetuses with severe deformities or other unviable issues to have to give birth rather than seek an end to suffering. As the Minneapolis Star Tribune reports:

Fewer than 2 percent of the 12,386 abortions performed in Minnesota in 2009 involved fetuses older than 20 weeks, according to the Minnesota Department of Health. NARAL Pro-Choice Minnesota said those cases often involve fetuses with fatal medical conditions.

"This ban is a cruel attempt by anti-choice forces to curb access to care for women in the most desperate of circumstances," said NARAL executive director Linnea House.

Kathi Di Nicola, Director of Media Relations of Planned Parenthood Minnesota, North Dakota, South Dakota, agrees, noting families and their physicians are better equiped to make personal medical decisions than the government is.

Not every pregnancy ends the way a family hopes it will. Some end in miscarriage, sometimes the mother develops serious complications. And sometimes she finds out there’s something seriously wrong with the pregnancy

This legislation bans safe medical options for a woman in this difficult situation and would have a devastating impact on a woman facing serious complications after her first trimester of pregnancy. 

Abortion is a complex, deeply personal decision that a woman makes in consultation with her doctor, her family and trusted loved ones and advisers based on her unique medical situation. Women and families know their unique circumstances best and need to be able to make personal medical decisions, often very difficult ones, without government interference.

If this truly is the only active abortion restriction the anti-choice politicians push for, it is quite likely that Minnesota could make it through the 2011 session with reproductive rights mostly intact, at least in comparison to many of the states in the country.

But the fact that Minnesota is proposing such a bill at all, and that so many other states are doing their own versions, shows how dire the state of reproductive health has become in this country.  When Nebraska passed their ban, no one challenged its constitutionality, perhaps thinking it was just one state and such a bad restriction could just be contained and ignored.

Now, it has the potential to spread and pass in multiple states, many of them in the midwest and south, truly creating a block of states that will not allow abortions after 20 weeks gestation for any reason except a mother's life.

Minnesota may end up escaping such a fate, but how many other states will be be able to say the same?


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