LINCOLN, Neb. — Mike Flood, the 35-year-old speaker of Nebraska’s Legislature, had a problem: He wanted to stop the state’s well-known abortion provider from offering late-term abortions.
A long line of U.S. Supreme Court precedents seemed to stand in his way. But Flood believes that a 2007 decision offers hope for him and other state legislators looking for ways to restrict abortion.
Using that decision as a road map, last spring Flood wrote and won passage of legislation that bans abortions after 20 weeks of pregnancy. Introducing into law the concept of “fetal pain,” it marked the first time a state has outlawed the procedure so early in a pregnancy without an exception for the health of the woman. The law shut down LeRoy Carhart, the provider who had planned to expand his practice outside Omaha and provide late-term abortions to women across the Midwest.
The importance of Flood’s bill is likely to be felt far beyond Nebraska. Abortion opponents call it model legislation for other states and say it could provide a direct challenge to Supreme Court precedents that restrict government’s ability to prohibit abortion before a fetus can survive outside the womb. (It also prompted Carhart to shift his practice east, and he has since opened a late-term practice in Germantown, Md., outside Washington.)
Court’s altered view
Critics of abortion hail the law as the most prominent and promising outcome of the Supreme Court’s 2007 decision, in which, coincidentally, Carhart was the lead plaintiff.
The 5-4 decision in Gonzales vs. Carhart turned away Carhart’s challenge to the federal ban on “partial birth” abortion and appeared to mark a significant change in the high court’s balancing of a woman’s right with the government’s interest.
The ruling was a key moment in the emerging identity of the court headed by Chief Justice John Roberts, who marked his fifth anniversary on the court this fall.
Roberts and Justice Samuel Alito, also nominated by President George W. Bush in 2005, have become part of a conservative majority willing to reconsider the court’s position on social and political issues.
But since the Roe vs. Wade decision in 1973, no social issue has been as entwined with the court as abortion, nor as dependent on its shifting views.
That’s what made the 2007 decision so important to both sides of the issue.
“Many in the pro-life movement have become very pragmatic when it comes to the court: ‘Can you count to five?’ ” said Mary Spaulding Balch, director of state legislation for the National Right to Life Committee. “With the Gonzales decision, we were happy to see that we could.”
The justices have not revisited the issue of abortion since, but the decision has emboldened state legislators to pass an increasing number and variety of restrictions in hopes that a changed court will uphold them, including rules that require physicians to read scripts about fetal development and consequences of abortion, or require them to make ultrasound images of the fetus available to the woman.
“I believe the decision was like planting a bunch of seeds, and we’re just starting to see the shoots popping out of the ground,” said Roger Evans, who is in charge of litigation for Planned Parenthood of America.
The Center for Reproductive Rights concluded that in 2010, state legislatures “considered and enacted some of the most extreme restrictions on abortion in recent memory, as well as passing laws creating dozens of other significant new hurdles.”
Flood agrees that his legislation pushes the court’s previous boundaries but recites parts of Justice Anthony Kennedy’s majority opinion in the 2007 decision to justify the effort.
“Absent the holding in Gonzales, I don’t think Nebraska would have any ability to even propose a bill like this and see it held constitutional,” Flood said in a recent interview. “I think Justice Kennedy’s decision opened the door and spoke to me to the point I wanted to be convinced of before I started down this path.”
The opinion was all the more striking because it seemed the opposite of what the court had ruled seven years earlier.
In 2000, the court struck down Nebraska’s attempt to ban the procedure that opponents term partial-birth abortion. Known in medical terms as “intact dilation and extraction,” it involves removing the fetus in an intact condition rather than dismembering it in the uterus.
With Justice Sandra Day O’Connor in the majority, the court ruled 5-4 that Nebraska’s law violated abortion rights established in Roe and affirmed in Planned Parenthood vs. Casey because it did not contain an exemption for allowing the procedure when a woman’s health was threatened.
But in 2007, with O’Connor replaced by Alito, the court in Gonzales upheld a federal ban on the procedure that did not include such an exception.
Kennedy’s majority opinion said Congress did not need to provide a health exception, because of its finding that other procedures exist for terminating late-term pregnancies and the procedure is never medically necessary.
Government’s interest
Kennedy’s ruling was shot through with references to government’s interest in protecting the unborn and in making sure women knew the consequences of their actions.
He drew the ire of Justice Ruth Bader Ginsburg and others when he discussed the regret a woman might feel about the decision to end a pregnancy.
“It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound” when she learns the details of the intact-dilation-and-extraction process, Kennedy wrote.
In a dissent, Ginsburg struck back at the insinuation that a woman has not fully thought through her decision, or should be protected from making such a choice.
“This way of thinking reflects ancient notions of women’s place in the family and under the Constitution,” said Ginsburg, which “have long since been discredited.”
Flood’s legislation was built on a premise that Right to Life’s Balch has been championing for years: that some studies indicate 20 weeks is the point at which a fetus may begin to experience pain.
Flood acknowledges there is medical disagreement on that point but said the court’s Gonzales decision seemed to leave balancing conflicting opinions up to legislators.
Some abortion-rights supporters say privately that a challenge might come if another state adopts Nebraska’s model, as seems likely. Those who were active in passing the law seem almost disappointed that the challenge has not arrived yet.
“We can’t say with any certainty that this is going to meet constitutional muster,” said Nebraska Right to Life executive director Julie Schmit-Albin. “But you know what, from our perspective, if we aren’t bucking up against Roe, we’re not doing our job.
“So we did our job in Nebraska, and now it’s time for the other states to do their job.”
