Nebraska Mother’s Nightmare with 20 Week Ban (2010)

Posted on March 14, 2010

ABC News, March 14, 2012 by

Danielle Deaver was 22 weeks pregnant when her water broke and doctors gave her a devastating prognosis: With undeveloped lungs, the baby likely would never survive outside the womb, and because all the amniotic fluid had drained, the tiny growing fetus slowly would be crushed by the uterus walls.

“What we learned from the perinatologist was that because there was no cushion, she couldn’t move her arms and legs because of contractures,” said Deaver, a 34-year-old nurse from Grand Isle, Neb. “And her face and head would be deformed because the uterus pushed down so hard.”

After having had three miscarriages, Deaver and her husband, Robb Deaver, looked for every medical way possible to save the baby. Deaver’s prior pregnancy ended the same way at 15 weeks, and doctors induced her to spare the pain.

But this time, when the couple sought the same procedure, doctors could not legally help them.

Just one month earlier, Nebraska had enacted the nation’s first fetal pain legislation, banning abortions after 20 weeks gestation. So the Deavers had to wait more than a week to deliver baby Elizabeth, who died after just 15 minutes.

“They could do nothing to make it better but tell us to wait, which made it worse,” Danielle Deaver said. “Every time I felt movement, I was terrified she was hurting and trying to push the uterus away from her.”

Abortion opponents have hailed the law, and legislators in 12 other states — Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Mississippi, New Mexico and Oregon — are considering similar restrictions.

They say the law is based on medical evidence gained since the Supreme Court’s Roe v. Wade decision that led to legalized abortion in 1973. But abortion rights advocates say the motive behind the laws is to challenge legalized abortion in the United States Supreme Court.

In her case, Danielle Deaver insisted, “We didn’t want an abortion.”

She said her doctors consulted attorneys about exceptions in the law because of the risk of infection that might destroy her chances of ever getting pregnant again.

“What we wanted,” she said, “was our labor induced so that I would go into labor and give birth to her and the outcome of her life would not have been different.”

“My health was at risk, as well,” she added. “We decided going forward it [premature labor] would be inevitable and we wanted nature to take its course. We were told we couldn’t do that.”

Taking the lead from Nebraska this week, the Oklahoma House of Representatives voted 94 to 2 to similarly ban abortion later than 20 weeks of gestation in what it called the “Pain-Capable Unborn Child Protection Act.” Bill 1888 will go on to the state Senate.

“It’s a very sad situation all around,” said Rep. Pam Peterson, who sponsored the Oklahoma bill. “It’s about the humanness. These unborn babies are in excruciating pain in the abortion process at 20 weeks.”We know they feel pain early on — there is medical evidence.”

She also said that the fact that Deaver’s baby was reported by her mother as “perfect and beautiful in her arms” showed the “discrepancy” in the medical advice she was given that the skull would have been crushed.

“Thirty-eight years ago when Roe v. Wade passed, we didn’t have the scientific evidence, but now this bill has caught up with the science,” said Peterson. “Back in 1973, we were told they were a clump of cells and we didn’t know the difference. Now we do fetal surgery and give anesthetics.”

U.S. law considers viability to be between 22 and 24 weeks, but states mark the point when abortion can be banned.

The research on fetal pain is conflicting. Some research indicates that nerve endings that form early in development enable the fetus to feel pain.

Dr. Kanwaljeet, “Sunny” Anand, principal investigator at University of Tennessee Health Science Center, who testified in 2004 regarding the federal partial birth abortion ban, said that at 20 weeks gestation, a fetus would experience “severe and excruciating pain.”

Science Doesn’t Know When Fetal Pain Begins

But other research suggests pain cannot be felt before the 29th week. A study published in October 2010 in the Journal of the American Medical Association concluded that evidence of fetal pain is limited. The study noted that neither withdrawal reflexes nor hormonal stress responses to invasive procedures proved the existence of fetal pain because those reflexes could be elicited by a non-painful stimulus.

The Royal College of Obstetrics and Gynecology in London has concurred with that position.

“We see new bills every day or so and they mirror Nebraska’s and Oklahoma’s type of language,” said Elizabeth Nash, a public policy associate at the non-profit Guttmacher Institute. “We don’t know when the fetus feels pain. … Science knows a lot, but they don’t know everything.”

“This is not a place for legislators,” said Nash. “This is a place for a woman and her family and her physicians. And for women in these situations — these laws do them no good. … These laws are not about public health, they are simply efforts to ban abortion.”

Danielle and Robb Deaver argue that their daughter, who gasped for breath and died in her arms 10 days following the initial complications after a natural birth, likely was in great pain in utero as she waited her inevitable death.

Their ordeal began on Nov. 28, as they were putting their 2-year-old son Alex to bed and Danielle Deaver’s water broke.

Robb Deaver, an emergency room admission staffer, raced his wife to the hospital, hopeful when doctors told them the pregnancy was not necessarily over. Sometimes, women make more amniotic fluid, they said.

But the next day, an ultrasound showed little amniotic fluid around the baby and Danielle was confined to 24 hours bed rest.

Two days later, she consulted a perinatologist who diagnosed anhydramnios, a premature rupture of the membranes before a fetus has achieved viability.

The baby likely would be born with contractures — shortening of the muscle tissue. Because its skull still was soft, the uterine muscle would cause deformities. The couple desperately hoped for a miracle, talking to doctors about bed rest, fluid replacement or use of steroids to save the pregnancy.

Specialists from the University of Nebraska Medical Center estimated that the fetus had a 10 percent chance of having a heartbeat and being able to breathe independently and, if it survived, an even smaller chance of being able to perform basic functions such as eating.

Only Exception to Law Is Danger to Mother’s Life

So the couple asked doctors if they could put an end to their child’s pain and induce the pregnancy, as they had with a previous miscarriage.

“We weighed the options and asked millions of questions and decided together that this was the best option for all of us,” said Danielle Deaver.

However, the new law had gone into effect Oct. 15.

Consulting their lawyers, the Deavers’ doctors said it would be impossible to induce because the fetus still had a heartbeat and the mother’s life was in no immediate danger.

The exceptions to the law were unclear, according to Dr. Todd Pankrazt, who was Danielle’s obstetrician/gynecologist.

“The risk of the baby developing an infection and the placenta coming out were real,” said Pankrazt. “The mom was also at risk for an infection.”

He said that a year ago, granting Danielle Deaver’s wishes would “not have been an issue,” and he could have induced labor for a vaginal birth.

“This is not at all a partial birth abortion,” said Pankrazt. “She could deliver and hold the baby and do all those things.

“With the change in the law, we were advised by three different lawyers that if we did this, we would be held to the fullest extent of the law, which meant loss of license,” he said. “Without having any case precedent risk of a law like that, [it] tied everybody’s hands.”

Under the law, doctors could face felony charges, five years in prison and a $10,000 fine by authorizing the procedure.

On Dec. 8, Daniel delivered 1-pound, 10-ounce Elizabeth, who survived only 15 minutes outside the womb. Now, three months later, Danielle Deaver has contacted Planned Parenthood. She said that so far she is not contemplating a challenged to the law.

“Part of how I am dealing with this is speaking out,” she said. “I hope to help someone else who is going through this awful situation. … I don’t know at what point a baby feels pain. But if that is the argument for the basis of 20 weeks, how could they let my baby go through this?”

“It was an awful thing we had to do,” she said. “This should not have been news. It should have been between just my doctor, my husband and myself, privately, in his office.”

The Deavers have not taken a public stand on abortion, they said, and don’t consider that to be the issue.

“That’s why this law is so frustrating,” she said. “We don’t want to say what our politics are. It doesn’t matter and it’s irrelevant.”