Lincoln, Neb. Two landmark measures putting new restrictions on abortion became law in Nebraska on Tuesday, including one that critics say breaks with court precedent by changing the legal rationale for a ban on later-term abortions.
Republican Gov. Dave Heineman signed both bills, one barring abortions at and after 20 weeks of pregnancy and the other requiring women to be screened before having abortions for mental health and other problems. Both sides of the abortion debate say the laws are firsts of their kind in the U.S.
A national abortion rights group already appeared to be girding for a legal challenge, calling the ban after 20 weeks “flatly unconstitutional” because it is based on the assertion that fetuses feel pain, not on the ability of a fetus to survive outside the womb.
“It absolutely cannot survive a challenge without a change to three decades of court rulings,” said Nancy Northup, president of the Center for Reproductive Rights. “Courts have been chipping away at abortion rights ... this would be like taking a huge hacksaw to the rights.”
The law focusing on late-term abortions is designed to shut down one of the few doctors in the nation who performs them in Nebraska.
Set to take effect in October, it is based on the claim that fetuses can feel pain at 20 weeks. The current standard in abortion restrictions is viability, or when a fetus is able to survive outside the womb — generally at 22 to 24 weeks.
The law could lead to changes in state laws across the country if upheld by the courts, said Mary Spaulding Balch, legislative director for National Right to Life.
“It would broaden the interests of states in protecting the unborn child,” she said. “It says the state has an interest in the unborn child before viability.”
Heineman also signed the other bill, approved by lawmakers on Monday, that requires the screening for mental health problems and other risk factors indicating if women might have problems after having abortions.
The fetal-pain bill is partially meant to shut down Dr. LeRoy Carhart, who attracted attention after his friend and fellow late-term abortion provider Dr. George Tiller was shot to death by an abortion foe in Kansas last year.
Kansas, worried that he might move there, has passed new bills that are awaiting action from Gov. Mark Parkinson, an abortion-rights Democrat. They would require doctors to list an exact medical diagnosis justifying a late-term abortion and also adjusts the definition of viability so that a fetus would be considered viable if there’s a “reasonable probability” it would survive outside the womb with life-sustaining measures such as an incubator.
Also, it codifies a state rule that the required second opinion on whether late-term abortions are necessary come from doctors in Kansas.
Attempts to restrict abortion across the country aren’t unusual — in Oklahoma, for example, new laws on abortions have been approved this year including a ban on abortions based on the gender of the child and tighter restrictions on the use of the RU-486 abortion pill.
South Dakota voters in 2006 and 2008 turned down proposals to ban abortion outright.
Nebraska’s law barring abortions after 20 weeks is sure to be challenged in court. Carhart has suggested he might do so. In January, he told The Associated Press, “they can pass any law they want to ... and spend millions of dollars to go to court and lose.”
A spokesman for Carhart said this week that he has no plans to leave Nebraska, but is exploring his options and isn’t ruling out a move to Kansas.
The switch from viability to fetal pain in justifying abortion limits raises fresh legal issues.
Abortion opponents say a 2007 U.S. Supreme Court ruling upholding a federal ban on certain late-term abortions opens the door for such legislation because it suggests states have an interest in protecting fetuses. They also say new studies and testimony from doctors prove fetuses feel pain at 20 weeks.
The argument used to justify the 20-week ban is based on the testimony of some doctors, some of it given during a 2005 congressional hearing. They contend there is substantial evidence that by 20 weeks, fetuses seek to evade stimuli in a way that indicates they are experiencing pain.
“The Nebraska Legislature has taken a bold step which should ratchet up the abortion debate across the nation,” Nebraska Right to Life director Julie Schmit-Albin said. “What we didn’t know in 1973 in Roe versus Wade ... we know now.”
The American College of Obstetricians and Gynecologists, however, says it knows of no legitimate evidence that fetuses experience pain at that stage.
“There is certainly no solid scientific evidence establishing that a fetus can perceive pain at these earlier stages, so any court decisions to uphold such broader laws could only do so by disregarding the importance of good scientific evidence,” said Caitlin Borgmann, a law professor at The City University of New York.
The U.S. Supreme Court would have to overturn earlier abortion-related rulings to uphold the Nebraska law, Borgmann said, including a 1992 ruling in Planned Parenthood v. Casey that upheld the right of women to have abortions before fetuses were viable.