A Strategy for the Next Supreme Court Abortion Battle?

April 6, 2010 -- Activists on both sides of the abortion debate are carefully eyeing a Nebraska bill that's wending its way through the legislature this week. They wonder if a proposed ban might end up as the subject of the next Supreme Court abortion battle.

The road to every major Supreme Court decision on a divisive social issue is littered with hundreds of hours of strategy sessions by lawyers, politicians and activists probing pending legislation to see if it has the potential to become a court challenge.

The Nebraska bill -- which seeks to make abortions illegal after the 20th week of pregnancy -- is no different. The bright-line rule is necessary because of some medical evidence that a fetus can feel pain at that stage of gestation, sponsors of the legislation say.

The legislation has drawn national attention from groups such as the Center for Reproductive Rights, which sees it as a direct challenge to Roe v. Wade, the 1973 case that legalized abortion. If the legislation passes, Nebraska will be the first state to ban abortions based on the controversial notion that a fetus can feel pain at 20 weeks. State law now has a post-viability ban on abortion but defines viability on a case-by-case basis.

"This bill is about recognizing that the state has an interest in an unborn child who is capable of feeling pain," Mary Spaulding Balch of the National Right to Life Committee said.

While some medical experts testified at the Nebraska hearings that a fetus is able to feel pain at 20 weeks, the American College of Obstetricians and Gynecologists released a statement saying it knows of "no legitimate scientific information that supports the statement that a fetus experiences pain."

Since the Roe decision, states have attempted to pass a variety of laws meant to limit abortion focusing on medical procedures and parental and spousal notification. The Nebraska bill is more worrisome because of its direct attack on Roe, according to the Center for Reproductive Rights.

The bill contains a health exception for the mother if "in reasonable medical judgment, she has a condition which so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function."

"This particular Nebraska bill is not subtle at all," Nancy Northup, the group's president, said. "It would require turning over two pillars of Roe in that states cannot establish a line of viability and the bill too narrowly defines an exception for women's health."