Weekly Pulse: Nebraska’s Sweeping Abortion Ban on Collision Course with Supreme Court

Yesterday, Nebraska’s Republican governor Dave Heineman signed a sweeping new law that criminalizes almost all abortions after 20 weeks’ gestation and another bill that forces women to undergo extensive mental health assessment prior to obtaining an abortion before 20 weeks.

Intimidating providers

Monica Potts of TAPPED explains that the laws are meant to have a chilling effect on all abortion providers in Nebraska. In the wake of last year’s assassination of Kansas abortion provider Dr. George Tiller, Dr. LeRoy Carhart of Nebraska began providing late-term abortions. According to Potts, the new abortion legislation is probably designed to run Dr. Carhart out of town.

An anti-choice Catch-22

Robin Marty of RH Reality Check notes the glaring contradictions between the two Nebraska abortion laws: Before 20 weeks of gestation, the state is so concerned about a woman’s health that they will force her to seek a mental health assessment to spare her the trauma of an ill-advised abortion. It seems that Nebraska legislators think women are so fragile that they can’t decide on their own whether an abortion will be unduly upsetting. Yet, after 20 weeks, a woman is not entitled to a “life of the woman” exemption even if a doctor determines that she is likely to commit suicide if she is forced to continue her pregnancy.

The second round of debate was held [Monday] on the Pain-Capable Unborn Child Protection Act, a bill created almost entirely as a vehicle for getting anti-choice legislation challenged and potentially reviewed by the Supreme Court.  Unlike every other anti-choice law that has so far passed in this country, LB 1103 refuses to provide an exemption for a mother’s mental health, regardless of the fact that prior to 20 weeks a pregnant woman’s mental health was so valuable that the state wants to advocate mandatory screenings to protect it.

Vanessa Valenti of Feministing writes of the Nebraska law:

The blatant anti-choice and ableist implications in these bills are just atrocious. Not only will some women be forced to carry their pregnancies to term with no mental health exception, but doctors will be terrified to perform abortions in fear of not correctly adhering to obscure these screening rules.

A collision course with Roe?

Gov. Heineman vowed to defend the new laws against any legal challenges. The Nebraska law bans abortion based on the purported ability of fetuses to feel pain, not their ability to survive outside the womb. The Supreme Court has ruled that states cannot ban abortion of pre-viable fetuses. According to the accepted legal reasoning, if a fetus is too immature to survive outside the woman’s body, the woman has the right to withdraw the support of her body by terminating the pregnancy.

Conveniently, anti-choicers say that they have scientific evidence that pre-viable fetuses can feel pain. This dubious evidence isn’t just a pretext for banning abortion earlier, it puts the bill on a crash course with Roe. If the abortion issue is really about a woman’s right to control her body, then the fetal pain issue is a red herring. A woman can legally inflict pain on a full-grown person if she strikes in self-defense to protect her bodily autonomy. Nebraska is launching a full frontal assault on women’s rights. In Nebraska the pain of a non-viable fetus allegedly matters more than a woman’s freedom. We’ll see what the Supreme Court says about that.

How Justice Stevens’ retirement fits in

The wheels were set in motion just as the leading liberal on the Supreme Court, Justice John Paul Stevens, announced his retirement. In The Progressive, Matthew Rothschild, the son of Stevens’ former law partner, recalls some of Stevens’ key pro-choice opinions over the course of his long career. For example:

In the 2000 Nebraska “partial-birth-abortion” case, Stevens stated: It is “impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty.”

As we look ahead to a Supreme Court confirmation battle, the Nebraska abortion bans illustrate why the stakes are so high. The Court is losing a leading champion of reproductive choice. President Barack Obama will face intense pressure from the liberal base to replace him with a nominee whose record on choice is equally strong. As Scott Lemieux argues at TAPPED, only a strong liberal will be able to hold the line against the conservative cadre of Scalia, Thomas, Roberts, and Alito.

This post features links to the best independent, progressive reporting about health care by members of The Media Consortium. It is free to reprint. Visit the Pulse for a complete list of articles on health care reform, or follow us on Twitter. And for the best progressive reporting on critical economy, environment, health care and immigration issues, check out The Audit, The Mulch, and The Diaspora. This is a project of The Media Consortium, a network of leading independent media outlets.

Like this story? Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

For more information or to schedule an interview with contact press@rhrealitycheck.org.

  • crowepps

    Considering that Nebraska is in the same position as all the other states, short on funds for everyday practical things like education and Medicaid and HeadStart programs, you’ve got to wonder just exactly where the tens of thousands of dollars involved in taking a case to the Supreme Court are coming from?  How many teachers are they going to lay off in order to try to impose their right-wing religion views on women dealing with tragic pregnancy complications?

    Nelson took note of the “balanced federalism” resolution approved Tuesday by the Nebraska Legislature amid calls for a balanced federal budget.

    Nelson said he too supports a balanced budget, but finds some calls disingenuous when “much of the spending in Washington is (due) to pressure by states” that use federal funds to balance their own budgets.

    Hundreds of millions of federal dollars appropriated to stimulate the economy by creating jobs were used to balance Nebraska’s current state budget, Nelson said.

    What is needed is “substantial reduction in spending at all levels of government,” he said.

    “I hope the Legislature will focus on that.”


  • invalid-0

    I missed the part where religion is being imposed.

  • elyzabeth

    The question “When does a person begin?” is scientifically meaningless and can only be designated according to somewhat-arbitrary developmental standards (conception, implantation, heartbeat, brain function, viability, birth, etc) based on societal or religious reasoning. 


    The current threshold–birth–relies on our society’s belief in bodily autonomy–that no one has the right to co-opt another person’s blood and organs without their consent. 


    I have not yet encountered any arguments for moving that threshold to any place prior to viability that did not rely entirely on religious reasons.

  • squirrely-girl


    Every time I hear somebody present an abortion argument (on either side <– honestly!) that incorporates God, Jesus, or religion, all I hear is, “wah wah wah…”

    Completely ignoring the idea that not everybody believes in God or the same god(s);God, Jesus, and religion have no bearing on any other areas we legislate. Not really. So why here?! When will people realize that religion has NO PLACE in government?  


  • mjm9352

    As long as we’re a free people you’ll hear the name of God. And God forbid we should lose our freedoms you might not hear him mentioned in public because of fear. Kinda like it is in some countries now. And if you pay close attention you’ll notice these countries are not giving any choices they are saying abort your babies. We the state who know not God have decided you get to have one baby after that we kill them for you. What you’re really hearing is not wah wah wah your hearing real freedom being expressed. As a pro-lifer we take it one step furthur and also try to recognize that voice we have yet to hear that abides in their mothers’ womb. And just like he hears people who no longer have a voice he also hears the countless voices of the yet to be born crying out in terror as their skulls are being crushed and their skins are being fried. So we’re not discussing trivial things we are discussing partial genocide of future American Citizens, male and female. On a lighter note be blessed as you have a right for your voice to be heard. As I do.

  • elyzabeth

    And if you pay close attention you’ll notice these countries are not giving any choices they are saying abort your babies. We the state who know not God have decided you get to have one baby after that we kill them for you.


    Multiple countries?  I’m pretty sure it was just China, and forced abortions barely scratch the surface of their human rights abuses.  Also, everyone here is just as opposed to forced abortion as they are to forced childbirth.  Choice, remember?


    Last time I checked, China had “lifted” their one-child policy officially–you have more than one kid, you still get denied public education, healthcare, and other public services for your children.


    Strangely enough, even the sex ratio in China is so skewed there are about 40 million more guys than girls.   Chinese culture is extremely misogynistic and values males much more than females, and there is great social pressure for Chinese citizens to selectively abort females.


    China has many, many cultural and economical problems that lead to people being treated like commodities, so it’s naive of you to blame it on the fact that they are a secular country.  If you need to assume religiousness is correlated with abortion, how do you explain that very secular European countries have the lowest abortion rates in the world?  Religious countries in Latin America and South America that incorporate Catholic beliefs into their legislation have extremely high abortion rates.