What a difference three years makes.
Nebraska wasn't aiming to start a revolution back in 2010, when it passed its landmark law. But it's arguably the place where this trend started. It's worth looking at how that law came into effect to understand where we are now — and why, in the span of three weeks, North Dakota and Arkansas have passed even more restrictive laws, ones that some hope will head to the Supreme Court.
At the time, the state was home to LeRoy Carhart, an abortion provider who had already become a frequent target of state-level abortion restrictions. He is the only abortion provider who has been party to multiple Supreme Court cases.
After Kansas late-term abortion provider George Tiller was murdered in the summer of 2009, Carhart decided he would begin performing abortions after 22 weeks of pregnancy. He wanted to fill the gap left by Tiller's practice in neighboring Kansas.
The legislature sprang into action on April 13, 2010. It passed the earliest abortion ban in the country, barring all procedures after 20 weeks. State legislators made clear that they meant to limit Carhart's ability to practice in the state.
“I didn’t find this bill,” Mike Flood, the Nebraska legislature's speaker, said at the time. “It found Nebraska.”
The legislation worked. Carhart no longer offers late-term abortions in Nebraska, instead opening a clinic in Maryland months later. But, perhaps more significantly, the Nebraska law set off a wave of similar regulations in other states. In the course of three years, nine states passed abortion bans at 20 weeks after conception.
"You kind of saw a one up-manship among state legislatures," says Elizabeth Nash, state policy manager at the Guttmacher Institute. "We started to see the 20-week bans, and a lot of them didn't get challenged. So now the momentum seems to be, let's try and push it earlier and earlier."
Prior to the Nebraska ban, states had already taken steps to limit late-term abortions. Twenty-one states had laws that banned abortions after viability, most with exceptions for the life or health of the woman. These laws are considered legal under Roe v. Wade, which found that states have a "compelling" interest in protecting a fetus that "presumably has the capability of meaningful life outside the mother's womb."
States had also passed laws that banned abortion later in the pregnancy, at specific week. These laws, as Nash explained to me, are thought to be a violation of standing abortion case law, which says that the point of viability must be determined by a physician not the state.
Since they often have little practical effect (98.7 percent of abortions happen prior to 21 weeks, according to the Centers for Disease Control and Prevention), states have left them on the books. New York, however, is currently trying to repeal a ban on abortions 24 weeks after the last period.
The 20-week bans looked different. For one, they moved up to an earlier point in pregnancy. Secondly, some in the anti-abortion movement saw them as a way to bring a new abortion case to the Supreme Court. Moving up earlier in the pregnancy would, the thinking went, likely bait a new challenge.
It didn't quite work: Most of the 20-week bans still stand as law, without any court challenge. Laws in Arizona, Idaho and Georgia have subsequently been challenged, after the Nebraska law spent a year on the books untouched.
State legislatures tend to shy away from controversial legislation in election years; 2012 saw a relative lull in activity. But in 2013, states began thinking about how they could go even further than Nebraska did. Arkansas passed a 20-week ban last month — and, within days, passed a 12-week ban over the veto of Democratic Gov. Mike Beebe. Not to be outdone, North Dakota passed a ban at six weeks, 21 days after the Arkansas decision.
"Truthfully you can’t get much earlier than six weeks," Nash says. "That is pretty much an abortion ban."
The motivations here seem to be twofold. First, and perhaps most obviously, abortion opponents want to see less abortion. A law that bans abortion at 12 weeks will outlaw more procedures than one that starts at 20 weeks. The Arkansas law at 12 weeks, for example, would have outlawed one in 10 abortions performed in 2010.
The second motivation though, is a bit of longer-term strategy: The desire to bring an abortion case to the Supreme Court. North Dakota Gov. Jack Dalrymple pointed specifically to this when he signed off on the state's six-week ban.
"Although the likelihood of this measure surviving a court challenge remains in question, this bill is nevertheless a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade," he wrote. "Because the U.S. Supreme Court has allowed state restrictions on the performing of abortions....the constitutionality of this measure is an open question."
Abortion-rights supporters have pledged to challenge the Arkansas and North Dakota laws. Planned Parenthood president Cecile Richards says she too now "assumes" that one challenge will wind its way up to the Supreme Court.
"I hope the Supreme Court will honor judicial precedent, that this is a right women and men have had for 40 years and won’t let it [be taken] away," she said in a recent interview.
In a way, Nebraska might end up getting more than it aimed for, three years ago, with its 20-week ban. It may have the Supreme Court weighing on the constitutionality of abortion altogether.