Roundup: The Road To The Supreme Court is Paved With Good Intentions

Apr 19, 2010, 10:49am

Nebraska Fetal Pain law weighed in on by lawyers, scientists, and...PETA!

Is it the Yellow Brick Road, or the Highway to Hell? All I know is that the Nebraska Pain-Capable Unborn Child Protection Act is starting its long process to its real target — the Supreme Court, and no one is shocked at all.

It’s been called a groundbreaking law, but a measure approved in Nebraska last week that changes the rationale for abortion bans probably won’t go into effect anytime soon — if ever.

Instead, abortion opponents are hoping it will become the most important case on abortion to reach the U.S. Supreme Court in recent memory. Even they acknowledge the ban on abortions at and after 20 weeks of pregnancy won’t see the light of day unless the high court rules that it is constitutional.

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The long trip to the high court — if it indeed lands there — combined with the time it takes for a ruling there could mean a final decision on the law is several years away.

First, a legal challenge must be posed. No one has stepped forward yet, but Dr. LeRoy Carhart, one of the nation’s few late-term abortion providers, is considered a likely candidate. Carhart, who practices in an Omaha suburb and is the target of the new Nebraska law, was a plaintiff in two of the biggest abortion cases of the last decade that reached the U.S. Supreme Court.

Anti-choice proponents are hoping that they can use the more conservative bent of the court to strike down the ban on limiting abortion before viability, and hope they have a savior in Justice Kennedy.

The fetal pain law violates court precedent that abortions cannot be banned before viability, so it is likely that an injunction will be issued, said Caitlin Borgmann, an abortion law scholar at the City University of New York.

“What the sponsors and supporters are really hoping for is a test case for Justice [Anthony] Kennedy,’’ she said.

Kennedy, a moderate conservative considered a swing vote, is seen by abortion opponents as their best chance for tighter restrictions on the procedure. Abortion rights advocates say he has done nothing to suggest he would favor a previability ban, but opponents are hopeful because of his positions on two high-profile abortion cases over the past decade. Both involve Carhart.

Alternet points out that for a crowd that likes to decry “judicial activism” they sure are interested in having courts make a decision that could overrule precedent.

So what’s going to happen once this gets to the Supreme Court? Tough to say, as we’re about to be treated to another episode of everyone’s favorite reality show, “Supreme Court Justice Confirmation.” But keep in mind, the Conservative Four (Scalia, Thomas, Roberts, and Alito) will be there regardless of who the rookie justice will be. And the Conservative Four have shown no hesitance to make dramatic changes in settled law – just go read about Citizens United and see how they turned decades of campaign finance reform on its’ collective head.

But, you might ask, shouldn’t the idea of judges making dramatic changes to settled law run counter to conservative ideals? Isn’t that – gasp – judicial activism that is so anathema to conservatives everywhere? Shouldn’t conservatives who believe in their principles just go to the ballot box and try to change law through the legislature instead of using the court to end run the will of the people, like they’ve loudly and consistently accused progressives of doing?

They should. I hope they do. I’m not holding my breath.

Of course, the best part is that the entire bill has been passed with the justification of faulty science. This article includes not only a rebuttal of every one of the four “pain standard” thresholds presented in Nebraska, but continues on to acknowledge that almost no one agrees with the main proponent’s thesis and even those who do say it is utterly irrelevant.

Does anyone agree with Anand?

Sort of. Vivette Glover of Imperial College London thinks it’s possible fetuses feel pain at 20 weeks “but it’s far from certain”. She backs giving anaesthesia at this stage just in case.

“But this does not justify changing the abortion time limit, where the interests of the mother may be much more important than those of the fetus, and the two have to be balanced,” she adds.

Indeed, Maria Fitzgerald of University College London, co-author of a report on fetal pain in 1997 by the British Royal College of Obstetricians and Gynaecologists, calls the Nebraska law “completely irrational”. She points out that even if fetuses could feel pain at 20 weeks, “it is irrelevant because if you wanted you could make sure there was adequate analgesia for an abortion”.

All of this still not enough of a circus for you? Well, thank goodness we have PETA to weigh in on the fray…

Lincoln, Neb. — In the wake of reports that Nebraska Gov. Dave Heineman signed two bills broadening the restrictions on abortion, PETA is weighing in on the issue … kind of. The group plans to erect a billboard in Lincoln that reads, “Pro-Life? Go Vegan.” Click here to see the billboard.

“People who support slaughterhouses every time they lift a fork cannot call themselves ‘pro-life,'” says PETA Vice President Bruce Friedrich. “We’re asking pro-life advocates to keep every heart beating by going vegan.”

In today’s industrialized meat and dairy industries, chickens and turkeys have their throats cut while they’re still conscious, piglets have their tails and testicles cut off without being given any painkillers, fish are suffocated or cut open while they’re still alive on the decks of fishing boats, and calves are taken away from their mothers within hours of birth.

Mini Roundup: Live Action gets no action in Wisconsin, and Santorum claims having everyone have access to healthcare is the greatest of oppression.

April 16, 2010

Texas law brings new abortion awareness – Oregon Daily Emerald

Want an abortion? Get prescreened – OneNewsNow

Pass the ban on abortion funding – Opelousas Daily World

McDonnell amends 122 bills – Roanoke Times

THE INFLUENCE GAME: Health care fight still rages – The Associated Press

Would-be Stupak rival raises $105K – Detroit Free Press

Veto Shows Abortion Corruption Started by Sebelius Encourages Carhart to … – Christian News Wire

Briefing: New law claims a fetus can feel pain – New Scientist

McDonnell accepts abortion ‘choice’ license bill, but blocks revenue from … – UPI.com

Remember Roe! – Newsweek

Objections raised, still abortion restrictions bill advances in Senate – Missourinet.com