State could reshape abortion policy

LINCOLN — Nebraska could reshape national abortion policy if lawmakers embrace a proposal to ban almost all abortions after a fetus reaches 20 weeks.

The state has played a role on the national stage before, with a 1997 law banning the controversial late-term procedure known medically as intact dilation and extraction, or D&X.

The U.S. Supreme Court in 2000 overturned that Nebraska law, upholding its previous abortion decisions and dealing a setback to abortion opponents, who call the procedure “partial-birth” abortion.

Those opponents gained hope seven years later, when the justices on a more conservative Supreme Court upheld a federal ban on the D&X procedure.

Now abortion opponents are looking for opportunities to push the court even further in restricting abortion.

“I think National Right to Life wants to see something go to the Supreme Court that would provide more protection to the unborn child,” said Mary Spaulding Balch, a lobbyist for the organization.

A new Nebraska legislative proposal could provide that opportunity.

Legislative Bill 1103 would ban abortions after 20 weeks unless the procedure would save a woman's life or “avert serious risk of substantial and irreversible physical impairment of a major bodily function.”

Speaker of the Legislature Mike Flood of Norfolk said he didn't introduce the bill with the goal of having it wind up before the Supreme Court.

Rather, he wants to stop Dr. LeRoy Carhart of Bellevue from becoming the region's main provider of late-term abortions.

Opponents as well as supporters of abortion rights agree the proposal would go beyond what current high court rulings allow.

“This bill is unconstitutional as it's drafted,” said Janet Crepps, of the New York-based Center for Reproductive Rights.

“Anybody who supports the bill should be clear that this is just a vehicle for them to go back to the Supreme Court and take rights away from women,” she said.

The bill would break new legal ground in two areas:

Ÿ It redraws the line after which abortions would be restricted.

Ÿ It narrows the cases in which abortions would be allowed after the line is reached.

Abortion law now is based on fetal viability — the point at which a fetus can survive outside the womb. Typically, a fetus is viable at about 24 weeks.

In the landmark 1992 Casey v. Planned Parenthood case, the Supreme Court said a woman has a right to an abortion without “undue interference” from the government before her fetus is viable.

After viability, the government can restrict abortions as long as there are exceptions to protect a woman's life or health, the court said.

The court made clear through other cases that viability must be determined case by case.

Nebraska law now follows the Casey prescription: Abortions are banned after viability except to protect the life or health of the woman.

Balch, the Right to Life lobbyist, argues for redrawing the line based on new information about fetal development.

She contends, and some experts agree, that a fetus can experience pain at 20 weeks.

“What I would like to bring to the attention of the court is, there is another line,” Balch said. “This new knowledge is something the court has not looked at before and should look at.”

Considerable disagreement remains, however, about when a fetus can sense pain.

In a review of fetal pain literature in 2005, University of California-San Francisco physicians reported that “fetal perception of pain is unlikely before the third trimester,” or about 27 weeks into the pregnancy.

Balch draws hope from the 2007 ruling on the federal ban on intact dilation and extraction. The court majority upheld the ban on the D&X procedure's use even before a fetus is viable, marking a break from its previous rulings.

But Crepps, the abortion rights advocate, called such arguments “wishful thinking.”

The 2007 ruling found the ban on intact dilation and extraction procedures constitutional, in part because women seeking abortions had alternative methods available, she said.

Crepps finds comfort in the position of Justice Anthony Kennedy, who is the swing vote on the court, sometimes siding with the more liberal members and sometimes with the more conservative ones.

Kennedy co-wrote the Casey decision affirming the viability standard and is unlikely to overrule himself, she said.

In Casey, the court held that the balance of rights shifts when a fetus can live independent of a woman. At that point, the state's interest in protecting the fetus can override the woman's right to choose abortion.

Abortions past 20 weeks are rare in Nebraska and nationally. There were none in the state in 2008, according to the Nebraska Department of Health and Human Services. National statistics show that 1.4 percent of all U.S. abortions — or 8,445 — fell into that category in 2005.

Even if the court changed course and accepted the 20-week standard, the bill could be doomed by a second major matter, said Laurel Marsh, executive director of ACLU Nebraska.

“Our contention is that it still is unconstitutional because it has no mental health exception,” she said.

LB 1103 would set the most narrow health exception in the country by allowing abortions only for threats of “physical” impairment to a woman.

The definition seeks to close what many abortion opponents consider a major loophole in existing law. The court made it clear in 1973 and again in 1992 that the health of a woman includes psychological factors.

State laws limiting health exceptions to serious threats to “a major bodily function” of a woman have been interpreted to include mental functioning.

But the Supreme Court has never specifically been asked to rule on whether a health exception must include mental health.

The Supreme Court ruled in 2007 that the federal “partial-birth” abortion ban did not need to have a health exception.

Contact the writer:

402-473-9583, martha.stoddard@owh.com

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