April 13, 2010 -- A Nebraska state law that will make abortions illegal after the 20th week of pregnancy has sparked speculation about whether the state ban -- the first of its kind in the United States -- might end up as the subject of the next Supreme Court abortion battle.
The primary goal of the "Pain-Capable Unborn Child Protection Act" is to stop late-term abortions, supporters say. The state law makes it a felony for a doctor to abort a fetus at more than 20 weeks.
Nebraska is the first state to ban abortions based on the controversial notion that a fetus can feel pain at 20 weeks. The state law, which will take effect Oct. 15, now has a post-viability ban on abortion but defines viability on a case-by-case basis.
"Nebraska does have an interest in protecting unborn lives when it can be established that the baby feels pain," said the speaker of the Nebraska legislature, Mike Flood.
The legislation has drawn national attention from abortion rights groups, which see it as a direct challenge to Roe v. Wade, the 1973 case that legalized abortion.
The Center for Reproductive Rights' president, Nancy Northup, told ABC News said the bill is "a gravely concerning issue" for abortion activists and argued that it directly challenges the Supreme Court's mandate.
"In passing these bills, Nebraska is taking a full-on challenge to fundamental principles of Roe v. Wade in both its attempt to ban abortions earlier than viability," Northup said.
Anti-abortion groups applauded the bill's passage, calling it a "landmark" law.
"By 20 weeks after fertilization, unborn children have pain receptors throughout their body, and nerves link these to the brain," National Right to Life Director of State Legislation Mary Spaulding Balch said in a statement. "These unborn children recoil from painful stimulation, which also dramatically increases their release of stress hormones. Doctors performing fetal surgery at and after 20 weeks now routinely use fetal anesthesia."
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 has stated it knows of "no legitimate scientific information that supports the statement that a fetus experiences pain."
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."
Kathryn Kolbert of Barnard College, who is a veteran of the abortion wars, argued and won in 1992 the case Pennsylvania v. Casey, which upheld the core holding of Roe. She argues that the choice on what a woman must do should be between herself and her doctor, not the government.
"The shenanigans have started," said civil rights attorney Kathryn Kolbert. "This is a very typical reaction for a social movement that is very committed to making sure it's more difficult for women to have abortions. ... If there was any truth to the fact, that would be helpful. The medicine doesn't bear it out."
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."
Kolbert said, "I don't think O'Connor would have let him get away with that. It feeds into a stereotype that women are too emotional, they don't know what they are doing."
Others are also pessimistic.
"With a court that's in flux about its protection of abortion rights, there's no telling," Northup said.
But some conservatives believe that science is evolving, suggesting that the court may revisit precedent.
"Since 1973, there has been a lot of development in what we know about the developing, unknown child," Balch of the National Right to Life Committee said. "This new information should make it to the Supreme Court."