Earlier versions of this article about a Nebraska law that bans most abortions after 20 weeks of pregnancy omitted an exception in the legislation. In addition to exceptions when a woman's life is in danger or to save an additional fetus in the womb, the law allows an exception "to avert serious risk of substantial or irreversible physical impairment of a major bodily function" in the woman. This version has been updated.
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Tests of 'Roe' more frequent since justices upheld late-term abortion ban in '07
Nebraska's antiabortion attorney general, Joe Bruning, agreed not to pursue appeals or try to enforce the law. He said he was convinced that courts would not uphold it and that further litigation "would only mean paying a million dollars to Planned Parenthood" in legal fees.
The 20-week threshold
On the other hand, Bruning said, the bill that bans abortion after 20 weeks is "brilliant in its simplicity."
Flood's bill, which went into effect in October, bans abortion after 20 weeks except when a woman's life is in danger or to save an additional fetus in the womb. The law also allows an exception "to avert serious risk of substantial or irreversible physical impairment of a major bodily function" in the woman. It contains no exception for a woman's mental health, or because of the discovery of a fetal anomaly.
Most states' abortion bans, including Nebraska's, begin at 22 or 24 weeks, which in most cases is considered the earliest a fetus could survive outside the womb. The new Nebraska law seems to provide a direct challenge to Supreme Court precedent that government may not unduly burden a woman's right to an abortion pre-viability.
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.
He provides the specific citation from Kennedy's opinion: "On Page 163, 'the court has given state and federal legislature wide discretion to pass legislation in areas where there is medical and scientific uncertainty.' "
He is ready with other examples, too, about a state's interest in protecting fetal life. He even notes Ginsburg's dissent, in which she complained that the decision "blurs the line firmly drawn in Casey between pre-viability and post-viability abortions."
Flood understands that he and Ginsburg are in disagreement. "Clearly my bill walks away from viability as a standard and instead substitutes a scientific standard that I think the state of Nebraska has a legitimate and substantial interest in preserving and promoting fetal life at that point."
The bill passed 44 to 5, and state Sen. Danielle Conrad was one of the five. "This legislation makes dramatic changes to every understanding of every court case and every bill and every ruling on this issue over 30 years," she said.
Both Flood and Conrad say that very few women would be affected by the ban - 90 percent of abortions take place in the first trimester. But Conrad said most abortions that take place so late in pregnancy are necessitated by problems that are discovered only then.
"What we're talking about now is forcing women to carry pregnancies that are incompatible with life," she said. "That's a dramatic departure from what medical practice and our jurisprudence has ever said."
Conrad was a constant presence on the floor as the abortion bills were debated, partly to establish a record for a constitutional challenge.
So far, that has not happened. Planned Parenthood of the Heartland President Jill June said her organization's clinics in Nebraska do not offer abortions after 16 weeks, and so her group does not have standing to challenge the law.
The Center for Reproductive Rights's Northup said the Nebraska law is not grounded "in either the Constitution or science." She said she believes it to be "clearly unconstitutional" and adds: "The fact that it has not been challenged yet does not mean that it won't be."
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."