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?
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.
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.