Nebraska's Sweeping Abortion Ban on Collision Course With Supreme Court

Yesterday, Nebraska's Republican governor Dave Heineman signed a sweeping new law that criminalizes almost all abortions after 20 weeks' gestation and another bill that forces women to undergo extensive mental health assessment prior to obtaining an abortion before 20 weeks.

Intimidating providers

Monica Potts of TAPPED explains that the laws are meant to have a chilling effect on all abortion providers in Nebraska. In the wake of last year's assassination of Kansas abortion provider Dr. George Tiller, Dr. LeRoy Carhart of Nebraska began providing late-term abortions. According to Potts, the new abortion legislation is probably designed to run Dr. Carhart out of town.

An anti-choice Catch-22

Robin Marty of RH Reality Check notes the glaring contradictions between the two Nebraska abortion laws: Before 20 weeks of gestation, the state is so concerned about a woman's health that they will force her to seek a mental health assessment to spare her the trauma of an ill-advised abortion. It seems that Nebraska legislators think women are so fragile that they can't decide on their own whether an abortion will be unduly upsetting. Yet, after 20 weeks, a woman is not entitled to a "life of the woman" exemption even if a doctor determines that she is likely to commit suicide if she is forced to continue her pregnancy.

The second round of debate was held [Monday] on the Pain-Capable Unborn Child Protection Act, a bill created almost entirely as a vehicle for getting anti-choice legislation challenged and potentially reviewed by the Supreme Court. Unlike every other anti-choice law that has so far passed in this country, LB 1103 refuses to provide an exemption for a mother's mental health, regardless of the fact that prior to 20 weeks a pregnant woman's mental health was so valuable that the state wants to advocate mandatory screenings to protect it.

Vanessa Valenti of Feministing writes of the Nebraska law:

The blatant anti-choice and ableist implications in these bills are just atrocious. Not only will some women be forced to carry their pregnancies to term with no mental health exception, but doctors will be terrified to perform abortions in fear of not correctly adhering to obscure these screening rules.

A collision course with Roe?

Gov. Heineman vowed to defend the new laws against any legal challenges. The Nebraska law bans abortion based on the purported ability of fetuses to feel pain, not their ability to survive outside the womb. The Supreme Court has ruled that states cannot ban abortion of pre-viable fetuses. According to the accepted legal reasoning, if a fetus is too immature to survive outside the woman's body, the woman has the right to withdraw the support of her body by terminating the pregnancy.

Conveniently, anti-choicers say that they have scientific evidence that pre-viable fetuses can feel pain. This dubious evidence isn't just a pretext for banning abortion earlier, it puts the bill on a crash course with Roe. If the abortion issue is really about a woman's right to control her body, then the fetal pain issue is a red herring. A woman can legally inflict pain on a full-grown person if she strikes in self-defense to protect her bodily autonomy. Nebraska is launching a full frontal assault on women's rights. In Nebraska the pain of a non-viable fetus allegedly matters more than a woman's freedom. We'll see what the Supreme Court says about that.

How Justice Stevens' retirement fits in

The wheels were set in motion just as the leading liberal on the Supreme Court, Justice John Paul Stevens, announced his retirement. In The Progressive, Matthew Rothschild, the son of Stevens' former law partner, recalls some of Stevens' key pro-choice opinions over the course of his long career. For example:

In the 2000 Nebraska "partial-birth-abortion" case, Stevens stated: It is "impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty."

As we look ahead to a Supreme Court confirmation battle, the Nebraska abortion bans illustrate why the stakes are so high. The Court is losing a leading champion of reproductive choice. President Barack Obama will face intense pressure from the liberal base to replace him with a nominee whose record on choice is equally strong. As Scott Lemieux argues in the American Prospect, only a strong liberal will be able to hold the line against the conservative cadre of Scalia, Thomas, Roberts, and Alito.