Nebraska Passes Controversial Abortion Ban

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, but abortion supporters are hoping to take the case to the Supreme Court.

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.

Between 2005 and 2010, 26 states considered bills that would require doctors to counsel women seeking abortions about fetal pain. Six states passed them, including Arkansas, Georgia, Louisiana, Minnesota, Oklahoma and Utah. Another three states -- South Dakota, Texas and Alaska -- include information on fetal pain in their counseling materials.

The Nebraska bill is more worrisome because of its direct attack on Roe, according to the Center for Reproductive Rights. Currently, no other states are studying the kind of restrictions that Nebraska implemented, but Northup said there is likely to be a copy cat effect, especially if the Supreme Court does not step in.

"Unfortunately, whenever the court shows that they're not going to be strong in protecting the rights of Roe v. Wade, you do see copy cat bills in other states," she said, adding that if the Supreme Court were to uphold the law, it would be "hugely devastating."

Abortion Rights Advocates Alarmed

State Sen. Danielle Conrad, a Democrat, had been fighting the bill. "The issue of fetal pain is a misnomer," she said. "The medical evidence is inconclusive. The real problem with this legislation is it eviscerates what the courts have told us from Roe v. Wade forward: that the standard cannot be a bright line. Instead, it must be an individual assessment of viability."

Anti-abortion supporters have been emboldened in their challenges to aspects of Roe since the Supreme Court upheld in 2007 a ban on an abortion procedure known by its critics as "partial-birth abortion," or a form of late-term abortion.

The case -- Gonzales v. Carhart -- alarmed the abortion rights community because the court had struck down a similar ban seven years before.

The difference was the composition of the court. Chief Justice William Rehnquist was replaced by Chief Justice John Roberts and Justice Sandra Day O'Connor was replaced by Justice Samuel Alito. Alito's vote gave the majority the five votes needed to uphold the ban.

"I spent my career following these types of bills, thinking about legislative strategy that would impact ... making all kinds of strategic decisions," Kolbert said. "I was probably in 44 states in the years leading up to Casey."

Kolbert looks at the Supreme Court today and is worried about the strong conservative block. She is particularly worried that Justice Anthony Kennedy, who voted to uphold Roe, might be slipping to the conservative side of the issue.

"Kennedy was with us on Casey, but O'Connor's presence on the court was central to Kennedy, Kolbert said. "He has shifted since O'Connor left the bench."

She pointed to language Kennedy wrote in the Gonzales decision that she believes suggests that women are somehow incapable of understanding the magnitude of the decision: "Whether to have an abortion requires a difficult and painful moral decision," Kennedy wrote, "which some women come to regret."

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