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."

Abortion Rights Advocates Alarmed

State Sen. Danielle Conrad, a Democrat, has 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.

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, too, is watching the progress of the Nebraska bill.

"I spent my career following these types of bills, thinking about legislative strategy that would impact … making all kinds of strategic decisions," she 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."

Some Conservatives Are Optimistic

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."

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."