LINCOLN — Brady Campbell would not be a healthy 3-year-old with a contagious giggle today if his parents had not made an agonizing decision before he was born, his mother said.
Tiffany and Chris Campbell decided to abort Brady's identical twin, Brendan, when the babies were at 22 weeks of gestation.
A former Omahan, Tiffany Campbell said at a legislative hearing Thursday that her sons had a severe case of twin-to-twin transfusion syndrome, a condition in which they unequally shared blood circulation.
One had too much blood, which strained his heart, while the other did not have enough blood to develop normally.
Fetal medicine specialists told the Campbells, of Sioux Falls, S.D., that the abortion offered the only hope that either baby would survive — and even then there were no guarantees.
“This was an excruciating decision for us to make,” she said. “But it would have been unimaginably worse if our decision had been criminalized. ... We would have buried two babies instead of one.”
Abortions at 20 weeks or later, with some exceptions, would be illegal in Nebraska under Legislative Bill 1103.
The bill proposes to use a fetus's perceived ability to feel pain, rather than its ability to survive outside the womb, as the dividing line between legal and illegal abortions. A fetus typically reaches viability at 24 weeks.
The measure would allow exceptions only to save a woman's life or “avert serious risk of substantial and irreversible physical impairment of a major bodily function.”
Abortions past 20 weeks are rare. There were none performed in Nebraska in 2008, according to the State Department of Health and Human Services. National statistics show that 1.4 percent of all U.S. abortions — or 8,445 — fell into that category in 2005.
In a legislative first, people attending Thursday's Judiciary Committee hearing were screened with a metal detector.
Security officials said that was prompted by the possibility that Dr. LeRoy Carhart, a Bellevue abortion provider, might attend. He did not appear.
Carhart has said he wants to continue the work of Dr. George Tiller, who performed late-term abortions at his clinic in Wichita, Kan., before he was gunned down at his church last year.
Speaker of the Legislature Mike Flood of Norfolk, who introduced LB 1103, said he thinks it offers a middle ground on abortion: “It seems reasonable to me that if an unborn child has reached 20 weeks and has the ability to feel pain, he or she is worthy of the state's protection.”
Those testifying at the hearing focused on fetal pain and the constitutionality of an abortion ban before fetal viability.
Evidence that fetuses feel pain by at least 20 weeks includes the development of the nervous system as well as measures of brain activity, stress hormones and behavior, said Dr. Ferdinand Salvacion, an anesthesiologist at Southern Illinois University School of Medicine.
However, Caitlin Borgmann, a law professor at City University of New York, said the weight of scientific evidence shows that fetuses don't perceive pain until viability, at about 24 weeks.
Banning abortions based on fetal ability to feel pain would break new legal ground.
Teresa Collett, a law professor at the University of St. Thomas in St. Paul, Minn., expressed confidence that the U.S. Supreme Court would find fetal pain adequate justification for the state to step in with a ban. “I believe this legislation has a very strong possibility of provoking a constitutional challenge, and I believe we would prevail,” she said.
But two other constitutional law experts said there was no reason to think the Supreme Court would change its stand that abortions cannot be banned before fetal viability.
Leslie Griffin, a law professor at the University of Houston Law Center, said the exceptions in the proposed ban are too narrow to meet constitutional standards.
The Supreme Court has ruled that bans on post-viability abortions must have exceptions for the life or health of the woman, including mental health.
State Sen. Brenda Council of Omaha questioned several witnesses about what would happen if a pregnant woman was suicidal and her doctors believed that an abortion was needed to address her mental condition.
Dr. Anita Showalter, head of obstetrics for Pacific Northwest University of Health Sciences, responded that she did not know of any situation in which abortion would be indicated for a suicidal woman.
Because of the constitutionality issues, Lincoln attorney Sue Ellen Wall said, lawmakers should be prepared to spend $300,000 to $1 million on a court challenge if they pass LB 1103.
Contact the writer:
402-473-9583, martha.stoddard@owh.com
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