Nebraska out front in putting new limits on abortion
Abortion opponents call it model legislation for other states and say it could provide a direct challenge to Supreme Court precedents.
By
Robert Barnes
The Washington Post
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LINCOLN, Neb. —
Mike Flood, the 35-year-old speaker of Nebraska's Legislature, had a problem: He wanted to stop the state's well-known abortion provider from offering late-term abortions.
A long line of Supreme Court precedents seemed to stand in his way. But Flood believes that a 2007 decision offers hope for him and other state legislators looking for ways to restrict abortion.
Using that decision as a road map, Flood wrote and won passage in spring of legislation that bans abortions after 20 weeks. Introducing into law the concept of "fetal pain," it marked the first time that a state has outlawed the procedure so early in a pregnancy without an exception for the health of the woman.
The law shut down Dr. LeRoy Carhart, the provider who had planned to expand his practice outside Omaha and provide late-term abortions to women across the Midwest.
Abortion opponents call it model legislation for other states and say it could provide a direct challenge to Supreme Court precedents that restrict government's ability to prohibit abortion before a fetus can survive outside the womb. (It also prompted Carhart to shift his practice east; he has since opened a late-term practice in Germantown, Md., outside Washington.)
Critics of abortion hail the law as the most prominent and promising outcome of the Supreme Court's 2007 decision, in which, coincidentally, Carhart was the lead plaintiff.
The 5-to-4 decision in Gonzales v. Carhart turned away Carhart's challenge to the federal ban on "partial birth" abortion and appeared to mark a significant change in the high court's balancing of a woman's right with the government's interest.
The ruling was a key moment in the emerging identity of the court headed by Chief Justice John Roberts, who marked his fifth anniversary on the court this fall.
Roberts and Justice Samuel Alito, also nominated by President George W. Bush in 2005, have become part of a conservative majority willing to reconsider the court's position on social and political issues.
"Many in the pro-life movement have become very pragmatic when it comes to the court: 'Can you count to five?' " said Mary Spaulding Balch, director of state legislation for the National Right to Life Committee. "With the Gonzales decision, we were happy to see that we could."
The justices have not revisited the issue of abortion since, but the decision has emboldened state legislators to pass an increasing number and variety of restrictions in hopes that a changed court will uphold them.
"I believe the decision was like planting a bunch of seeds, and we're just starting to see the shoots popping out of the ground," said Roger Evans, who is in charge of litigation for Planned Parenthood of America.
The Center for Reproductive Rights concluded that in 2010, state legislatures "considered and enacted some of the most extreme restrictions on abortion in recent memory, as well as passing laws creating dozens of other significant new hurdles."
The center's docket of lawsuits challenging state abortion restrictions has grown by a dozen cases in the past two years, President Nancy Northup said.
Flood agrees that his legislation pushes the court's previous boundaries, but he recites parts of Justice Anthony Kennedy's majority opinion in the 2007 decision to justify the effort.
The opinion was all the more striking because it seemed the opposite of what the court had ruled seven years earlier.
In 2000, the court struck down Nebraska's attempt to ban the procedure that opponents term partial-birth abortion. Known in medical terms as "intact dilation and extraction," it involves removing the fetus in an intact condition rather than dismembering it in the uterus.
With Justice Sandra Day O'Connor in the majority, the court ruled 5 to 4 that Nebraska's law violated abortion rights established in Roe v. Wade (1973) and affirmed in Planned Parenthood v. Casey (1992) because it did not contain an exemption for allowing the procedure when a woman's health was threatened.
But in 2007, with O'Connor replaced by Alito, the court in Gonzales upheld a federal ban on the procedure that did not include such an exception.
Kennedy's majority opinion said Congress did not need to provide a health exception, because of the majority's finding that other procedures exist for terminating late-term pregnancies and that the procedure is never medically necessary.
He noted that the Casey decision affirmed the right to abortion before fetal viability. But he said it also established that "government has a legitimate and substantial interest in preserving and promoting fetal life."
Kennedy's ruling was shot through with references to government's interest in protecting the unborn and in making sure women knew the consequences of their actions.
He drew the ire of Justice Ruth Bader Ginsburg and others when he discussed the regret a woman might feel about the decision to end her pregnancy.
"This way of thinking reflects ancient notions of women's place in the family and under the Constitution," wrote Ginsburg, which "have long since been discredited."
One outgrowth of the decision's expansive language on what a woman should know about abortion has been that an increasing number of states require physicians to read scripts about fetal development and consequences of abortion.
Abortion-rights proponents call the "informed consent" laws "biased consent," because they substitute language from lawmakers for the words of physicians.
Many states require abortion providers to make ultrasound images of the fetus available to the woman; the Center for Reproductive Rights has filed suit to block an Oklahoma law that requires the ultrasound image be displayed where a woman can see it while a physician describes specific aspects of the fetus.
Nebraska passed a second anti-abortion law aimed at "patient screening" that imposed a wide variety of counseling demands on physicians.
Planned Parenthood of the Heartland challenged the law before it took effect, and a federal judge issued an injunction, saying it was so vague that it would make it virtually impossible for a woman to get an abortion in the state.
Flood's bill, which went into effect in October, bans abortion after 20 weeks except when a woman's life is in danger or to save an additional fetus in the womb. It contains no exception for a woman's mental health, or because of the discovery of a fetal anomaly.
Most states' abortion bans, including Nebraska's, begin at 22 or 24 weeks, which in most cases is considered the earliest a fetus could survive outside the womb. The new Nebraska law seems to provide a direct challenge to Supreme Court precedent that government may not unduly burden a woman's right to an abortion, pre-viability.
Flood's legislation was built on a premise that Right to Life's Balch has been championing for years: that some studies indicate 20 weeks is the point at which a fetus may begin to experience pain.
The Center for Reproductive Rights' Northup said the Nebraska law is not grounded "in either the Constitution or science."
nebraska is undermining abortion rights
