FIRST ONE @ ONE FIRST

Nebraska Stands Down…For Now

Posted in Clairvoyance, Law and Politics by Mike Sacks on August 18, 2010

Just a few days ago, it seemed as though in the next few terms the Court would be facing down an unavoidable phalanx of hot-button issues: gay marriage, health care, affirmative action, illegal immigration, and abortion.  Today, however, the phalanx may have lost a horseman: the inevitable big abortion case became, well, evitable–kind of.

Back in April, the Nebraska legislature passed a new law, LB 594, that required pregnant women seeking abortions to be screened for a litany of risk factors to determine whether the women would suffer from mental or physical problems following an abortion.  In July’s Planned Parenthood v. Heineman, Judge Laurie Smith Camp of the U.S. District Court for the District of Nebraska found the bill to create “substantial, likely insurmountable, obstacles in the path of women seeking abortions in Nebraska,” and issued a temporary restraining order in enjoining the legislation from coming into effect.

Today, the AP reports that the Nebraska Attorney General has chosen not to appeal:

“It is evident from the judge’s ruling (to temporarily block the law from taking effect) that LB594 will ultimately be found unconstitutional,” she said. “Losing this case would require Nebraska taxpayers to foot the bill for Planned Parenthood’s legal fee.”

“We will not squander the state’s resources on a case that has very little probability of winning.”

While the district court’s TRO will now become a permanent injunction, a severability clause in LB 594 allows the rest of the legislation to stand.

Nevertheless, there remains separate bill, LB 1103, which provided for the headline-grabbing ban on abortions after 20 weeks of pregnancy–without regard to the woman’s health–on the theory that fetuses can feel pain at that gestational point.  The provision, says the AP, “is scheduled to go into effect on Oct. 15, but a legal challenge is possible from Bellevue abortion doctor LeRoy Carhart.”

Yes, that’s the same Carhart from the partial-birth abortion cases of 2000 and 2007, in which the Court sided first for Carhart in striking down a Nebraska law, and then, with Justice Alito’s replacement of Justice O’Connor, sided against Carhart in upholding a virtually identical federal law.

If Carhart does bring suit, then the hot-button phalanx lives.  The question then will be how the Roberts Court will dispose of these cases if docketed.  Might we see a return of the 2006-07 Court, which stacked the docket with ideological blockbusters and pushed the issues rightward?  Or will we see a continuation of the Court’s past two terms, in which it preserved its political capital for one major gain while finding compromises on issues too explosive to touch.  Political factors may determine which Roberts Court we shall see: will the Court be supported by a Republican-controlled Congress?  Will these cases come during the 2012 Presidential campaign or after the election?

After much talk, including my own, of this term’s rise of the Roberts Court, we may be in for another incarnation sooner than imagined.

CORRECTION: This post originally stated that the two abortion restrictions discussed were part of the same Nebraska bill.  That was incorrect.  The post has been edited accordingly.  Thanks to my professor and mentor, Ken Jost of CQ Researcher, for calling my error to my attention.

2 Responses

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  1. SCOTUSblog » Thursday round-up said, on August 19, 2010 at 11:06 am

    [...] Sacks at First One @ One First reports on recent developments in the challenge to a Nebraska law regulating abortion and considers [...]

  2. [...] First One @ One First: “[T]here remains separate bill, LB 1103, which provided for the headline-grabbing ban on abortions after 20 weeks of pregnancy–without regard to the woman’s health–on the theory that fetuses can feel pain at that gestational point. The provision, says the AP, ‘is scheduled to go into effect on Oct. 15, but a legal challenge is possible from Bellevue abortion doctor LeRoy Carhart’ . . . If Carhart does bring suit, then the hot-button phalanx lives.” [...]


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