Members of the Senate State Affairs Committee have been questioning Nebraska physician Sean Kenney about SB 1165, the bill to ban abortions after 20 weeks of pregnancy. Sen. Bart Davis, R-Idaho Falls, noted that U.S. Supreme Court decisions note a compelling interest for states to legislate at 23 to 24 weeks of gestation, "but the bill talks of 20 weeks." He asked Kenney why, "from a medical point of view," he would "take exception to the U.S. Supreme court" on the compelling standard issue. Kenney responded that there are different ways to count weeks of gestation, and cited experiences he's had that suggest to him that fetuses feel pain very early in gestation.

Sen. Michelle Stennett, D-Ketchum, asked about how the bill would impact parents of a fetus with life-threatening conditions like anencephaly, or lack of a brain. Kenney told the committee of a case in which a premature infant was delivered and survived without a brain for several months, though such fetuses normally don't survive outside the womb for more than 10 minutes, he said. Kenney told the senators, "My experience is at 10 weeks post-fertilization ... I have a baby in the making."

Idaho spent more than three-quarters of a million dollars defending abortion legislation in the 1990s, including $380,000 in attorney fees the state was ordered to pay in 2007 to Planned Parenthood of Idaho after that group challenged unconstitutional provisions in a 2005 abortion parental consent law.

Sen. Edgar Malepeai, D-Pocatello, asked, "Have we had a problem in Idaho? Is that why you are here?" Kenney said Nebraska passed a similar bill because a provider planned to begin providing late-term abortions in the state; that law has not yet been challenged in court. "We feel in Nebraska ... child abuse should not be tolerated," Kenney said. Malepeai said under his reading of the bill, a father could sue and receive compensation, even if the father is a rapist or incest perpetrator. Kenney responded, "That is definitely theoretically possible." But he said that'd probably be a minority of cases, and in cases of rape or incest, abortions still could be sought before 20 weeks gestation. "By the time the baby can feel pain, it should be protected," he said.

SB 1165 would forbid all abortions after 20 weeks except to save the life or physical health of the mother; it has no exceptions for cases of rape or incest, nor would it permit consideration of the mother's mental or psychological health.