The New York Times reports that Nebraska has opened up a new front in the abortion wars:
Gov. Dave Heineman of Nebraska signed a law on Tuesday banning most abortions 20 weeks after conception or later on the theory that a fetus, by that stage in pregnancy, has the capacity to feel pain. The law, which appears nearly certain to set off legal and scientific debates, is the first in the nation to restrict abortions on the basis of fetal pain. [...]
The Nebraska law grew out of a battle over abortion waged in a far different forum. After an abortion opponent killed Dr. George R. Tiller, a leading late-term abortion provider in Wichita, Kan., last year, Dr. LeRoy H. Carhart, who sometimes worked with Dr. Tiller, said he would carry on his legacy by performing some later-term abortions in his clinic in Bellevue, Neb.
The Court’s most recent big abortion cases both had Dr. Carhart in the caption. 2000’s Stenberg v. Carhart struck down Nebraska’s partial birth abortion ban by a 5-4 vote, holding that the state law placed an undue burden on a woman’s right to an abortion because the law had no exception to allow the procedure when the mother’s life or health was threatened by her pregnancy. The Court changed course in 2007 with Gonzalez v. Carhart. Justice Alito cast the deciding fifth vote to uphold the federal ban on partial birth abortions, whereas his predecessor, Justice O’Connor, provided the fifth vote to strike down Nebraska’s similar law in Stenberg.
The partial birth abortion bans tested the undue burden standard late in a pregnancy, in which the Court in Roe and Casey both recognized the state’s compelling interest in protecting fetal life. This law is very different:
Lawmakers in Nebraska were outraged at the prospect of becoming, in the words of one of the state’s leading anti-abortion groups, the next “late-term abortion capital of the Midwest.” Early Tuesday, the state’s nonpartisan unicameral legislature passed the new measure overwhelmingly, 44 to 5. [...]
The law, which is to take effect Oct. 15, restricts abortion in Nebraska on several fronts. It will forbid abortions after 20 weeks’ gestation. The law it replaces, similar to those in many other states, banned abortions after a fetus reaches viability, or can survive outside the womb. This is determined case by case but is generally considered to come around 22 weeks at the earliest.
The new law grants exceptions only in cases of medical emergency, the pregnant woman’s imminent death, or a serious risk of “substantial and irreversible physical impairment of a major bodily function,” a provision experts interpreted as an effort to exclude an exception based on a woman’s mental health.
Casey‘s undue burden standard is the strictest for abortion regulations before the fetus is viable. By banning abortions of fetuses starting at twenty weeks old, Nebraska’s new law seeks to set a new bright line for fetal viability.
If this case gets to the Court as currently composed (assuming Justice Stevens’s successor will vote as he would have voted), Justice Kennedy will, as ever, be the deciding vote. Although he voted in both Stenberg and Gonzales to uphold the partial birth abortion bans, his vote is less certain for this law. A total ban on abortions of arguably pre-viable fetuses when the state’s regulatory power under Casey is at its nadir is very different from what Kennedy saw in Gonzales as a narrow ban on a particular abortion procedure that was performed when the state’s regulatory power under Casey was at its apex.
Further, if Casey did anything for an instinctual abortion foe such as Kennedy, it was to demolish Roe‘s rigid trimester framework and erect in its place a more fluid, regulation-friendly, assessment based upon fetal viability. The new Nebraska law puts back in place Roe‘s rigidity, even as it cuts away at the abortion right. In doing so, the law invites the Court’s steadfast abortion foes to keep approving of each states’ moving the viability goalposts ever closer to conception, thereby eviscerating the appeal of bright line rules while making a mockery of the serious viability assessments required under Casey.
Finally, one must not forget that Justice Kennedy will have the weight of Casey upon him as the sole remaining member of its majority of himself and Justices O’Connor, Souter, Stevens, and Blackmun. It is doubtful that Kennedy, a man very aware of his unique place on the Court, would vote to uphold a law that strikes at the very core of his career’s most courageous stand.
I should have anticipated that only the second installment of “Friends of F1@1F” would be a bit of a deviation from its mission to highlight the blogs of those I’ve met in line. This week, I bring you an interview with Jeffrey Toobin by Anthony Vitarelli, a pre-F1@1F friend of mine who gave me my blogging start at a now-defunct political blog that he founded and edited.
Here’s an excerpt from the interview:
Vitarelli: [...] I’m curious what your thoughts are on what has made Justice Stevens effective at garnering majorities in cases like Hamdan and Boumediene? If this President were seeking to replicate that aspect of Justice Stevens’s temperament, what would he look for in a nominee’s career to date?
Toobin: One of the myths of Supreme Court confirmations, or Supreme Court appointments, is that there are very good predictive tests of how people will turn out as justices. I mean, look at Justice Stevens. Justice Stevens started out on the bench as kind of a lone eccentric and turned into a tremendous consensus builder. Through the course of all his decades, there were a couple of different kinds of justices that he was.
Obviously, it would be best not to nominate a reclusive scholar, but it is hard to predict what kind of personality would move the very small electorate that is the Supreme Court, especially when you’re largely talking about only one persuadable target. That’s really guesswork. Any nominee that is nominated in 2010 is likely to serve with many justices whose identities we don’t even know yet. All this talk about the kind of personality you want is really guesswork at best.
Vitarelli: In terms of the current careers that potential nominees have, the last nine have been sitting judges on circuit courts. How has that fact helped or hurt the Court as an institution? What advice would you give to the President on this point?
Toobin: I think Obama is right that it is time to end the circuit judge monopoly on the Supreme Court. Historically, the justices have not all come from the appellate court bench. Personally, I don’t think the Supreme Court should be the top step on the civil service ladder for judges – it’s a different job than other kinds of judges. And it’s no coincidence that the court that decided Brown vs. Board of Education didn’t have one person on it that had ever been a judge on any court before that. I think judges with legislative, executive, and business experience would be very good.
Vitarelli: Do you think that the fact that 2010 is an election year will affect which person the President nominates for the Court?
Toobin: I don’t think so. We operate in a 24-hour, 365-day political and news cycle. So I don’t think 2010 is much more politically incendiary than 2009 was. Democrats and Republicans fight all the time, that’s just the world we live in. And I don’t think it matters much.
I don’t know if Obama has actually committed himself to ending the circuit judge monopoly on the Supreme Court with his next nominee. I support the revival of politicians and practitioners on the Court, but am wary of starting that trend with Stevens’s successor. Stevens’s role on the Court as the senior associate justice and the liberal bloc’s leader has become too valuable for Obama to choose a nominee that possesses insufficient institutional knowledge, pre-existing gravitas, and political skills to step right into Stevens’s shoes. There are surely non-circuit judges that could ably fill the Stevens seat, but none of them are on Obama’s shortlist. The President would do well to wait for Justice Ginsburg’s retirement to start experimenting with unknown quantities.
Today’s second Friend of F1@1F is Sabrina Ghaus. Sabrina was one of the thirty-some high school students from Cupertino, CA, who camped out overnight for the McDonald argument on March 2. Below is an excerpt from her reflections on that cold, happy night:
The last time we walked by the marble steps of the Supreme Court, it was 4:30 pm and the late afternoon sun shone lazily in the sky. “Lazily,” because it couldn’t be bothered to provide us with any warmth. The weather itself was briskly chilly.
We sat in a group, 32 members strong on the cold marble, huddling for warmth.
“Do you guys want to camp out?” Mr. Chiang asked.
My eyes widened. YES, I said under my breath. PLEASE.
There was chatter and noise as people argued and complained about the cold.
“Can we go back to the hotel? It’s not worth it!” “But what if we WANT to sleep outside?” “Can we come early in the morning?”
And after about 20 minutes of useless argumentation, it was settled. Those of us who wanted to would camp out. The rest would stay at the hotel.
I couldn’t believe it was really happening.
If you, too, have a story from the Supreme Court sidewalk, please do write to me.