Legal fights await abortion law

Court injunction likely to block Neb. measure for some time

Governor Dave Heineman of Nebraska last week signed into law two bills restricting abortion that are widely viewed as firsts in the country. Governor Dave Heineman of Nebraska last week signed into law two bills restricting abortion that are widely viewed as firsts in the country. (Nati Harnik/ Associated Press)
By Nate Jenkins
Associated Press / April 19, 2010

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LINCOLN, Neb. — It has been called a groundbreaking law, but a measure approved in Nebraska last week that changes the rationale for abortion bans probably will not go into effect anytime soon.

Instead, abortion opponents are hoping it will become the most important case on abortion to reach the US Supreme Court in years. Even they acknowledge the ban on abortions — which applies to women at and after 20 weeks of pregnancy — will not see the light of day unless the high court rules that it is constitutional.

Mary Spaulding Balch, legislative director for National Right to Life, said a court injunction will probably prevent the implementation of the law. The measure was passed last week by Nebraska’s nonpartisan Legislature and signed into law by Governor Dave Heineman, a Republican. It is scheduled to take effect in October.

Lower courts have no precedent to support the law, which bases the new restrictions on the assertion that fetuses feel pain. “This is a case of first impression,’’ Spaulding Balch said.

The long trip to the high court — if it indeed lands there — combined with the time it takes for a ruling there, could mean a final decision on the law is several years away.

First, a legal challenge must be posed. No one has stepped forward yet, but Dr. LeRoy Carhart, one of the nation’s few late-term abortion providers, is considered a likely candidate. Carhart, who practices in an Omaha suburb, was a plaintiff in two of the biggest abortion cases of the last decade that reached the US Supreme Court.

Carhart said the passage of the law and another that requires women to get preabortion screenings for mental and physical problems has strengthened his commitment to protecting women’s reproductive rights.

The Center for Reproductive Rights hinted in a letter to Heineman urging him to veto the bills that it would be involved in a challenge of the ban on late-term abortions.

“This bill is clearly unconstitutional and is the most extreme abortion law passed in this country in recent memory,’’ the letter states. The letter goes on to tell Heineman that the center has litigated in support of reproductive rights in cases in Nebraska and across the country.

The 20-week ban is based on assertions from some doctors that fetuses feel pain by that stage of development. Critics say that there is no firm evidence to support the claim, and that the law is an unconstitutional break from more than 35 years of court precedent that sets viability as the dividing line for abortion restrictions.

Viability is the ability of a fetus to survive outside the womb. Although determined on a case-by-case basis, viability is generally considered to be between 22 and 24 weeks of pregnancy.

Opponents of the Nebraska law also say it is unconstitutional because it does not allow mental health issues to be used as reasons to have abortions at and after the 20-week mark.

Whether an injunction will be issued depends in part on whether a judge thinks there is a likelihood that the law will not withstand a legal challenge. Abortion rights advocates say that standard is clearly met.

The fetal pain law violates court precedent that abortions cannot be banned before viability, so it is likely that an injunction will be issued, said Caitlin Borgmann, an abortion law scholar at the City University of New York.

“What the sponsors and supporters are really hoping for is a test case for Justice [Anthony] Kennedy,’’ she said.

Kennedy, a moderate conservative considered a swing vote, is seen by abortion opponents as their best chance for tighter restrictions on the procedure. Abortion rights advocates say he has done nothing to suggest he would favor a previability ban, but opponents are hopeful because of his positions on two high-profile abortion cases over the past decade. Both involve Carhart.