It's been called a groundbreaking law, but a measure approved in Nebraska last week that changes the rationale for abortion bans probably won't go into effect anytime soon — if ever.
Instead, abortion opponents are hoping it will become the most important case on abortion to reach the U.S. Supreme Court in recent memory. Even they acknowledge the ban on abortions at and after 20 weeks of pregnancy won't 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 likely prevent the implementation of the law. The measure passed last week by Nebraska's nonpartisan Legislature and signed into law by Republican Gov. Dave Heineman 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 and is the target of the new Nebraska law, was a plaintiff in two of the biggest abortion cases of the last decade that reached the U.S. Supreme Court.
Carhart said in a statement that the passage of the law and another that requires women to get pre-abortion screenings for mental and physical problems has strengthened his commitment to protecting women's reproductive rights.
The Center for Reproductive Rights, which has close ties to Carhart, 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. It reminds Heineman that the center has litigated cases in Nebraska and across the United States in its fight for women's reproductive rights.
The 20-week ban is based on assertions from some doctors that fetuses feel pain by that stage of development. Critics say 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. While determined on a case-by-case basis, viability is generally considered to be between 22 and 24 weeks of pregnancy.
Opponents of the law also say it is unconstitutional because it doesn't 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 partially depends on whether a judge thinks there is a likelihood that the law won't withstand a legal challenge. Abortion rights advocates say that standard is clearly met.
The fetal pain law "blatantly violates" court precedent that abortions can't be banned before viability, so it is likely that an injunction will be issued, said Caitlin Borgmann, an abortion law expert and professor 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. While abortion rights advocates say he has done nothing to suggest he would favor a pre-viability ban, opponents are hopeful because of his positions on two high-profile abortion cases over the past decade.
Both involve Carhart.
Abortion opponents' record with those cases in a federal court in Nebraska that is likely to consider the new law isn't good.
In 1997, U.S. District Court Judge Richard Kopf granted an injunction to keep from going into effect a Nebraska-approved ban on the procedure that critics call partial-birth abortion. Kopf later struck down the law, and the 8th Circuit U.S. Court of Appeals upheld his decision. The U.S. Supreme Court, with Kennedy dissenting, upheld the 8th Circuit's decision.
In 2003, less than an hour after President Bush signed the federal Partial-Birth Abortion Ban Act, Kopf issued an injunction preventing that law from taking effect. As in the late 1990s, Kopf struck down that law and the 8th Circuit upheld his decision.
But the Supreme Court, with Kennedy writing for the majority, overturned the decision and upheld the federal ban.
The injunctions in both cases "confirms the likelihood" that one will be issued against the latest Nebraska law, Borgmann said.
But the former Nebraska attorney general who was at the center of the 1997 case over the state ban thinks things could turn out differently this time around.
One standard judges consider when deciding whether to grant injunctions — whether lawsuits challenging laws are likely to win — may not be met, said Don Stenberg, who defended the state law in arguments before the Supreme Court. He argues that the test of whether abortion restrictions are legal is not fetus viability but whether abortion restrictions present undue burdens to women.
"The key test is whether ... this prohibition because of fetal pain at 20 weeks is an undue burden on what courts say is a woman's right to an abortion," Stenberg said. "I don't think it is."
Another standard used to determine if injunctions are issued is whether irreparable harm would be caused if an injunction wasn't issued. Stenberg said that because the current start of viability is around 22 weeks and the new Nebraska ban is at 20, the law is eliminating only a short period in which abortions can be performed.
"Does something happen between 20 and 22 to 24 weeks that causes irreparable harm?" he asked.
Jordan Goldberg of the Center for Reproductive Rights said the bill plays off the notion of fetal pain and a state's right to protect a fetus and "none of those reasons are sufficient to outweigh a woman's right to end a pregnancy."
Associated Press Writer Timberly Ross reported from Omaha, Neb.
On the Net:
National Right to Life: http://www.nrlc.org/
Center for Reproductive Rights: http://reproductiverights.org/
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