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The Washington Post

Tests of 'Roe' More Frequent Since Justices Upheld Late-Term Abortion Ban in '07

Robert Barnes

An abortion rights activist is across the street from antiabortion protesters in Germantown. (Ricky Carioti / The Washington Post)

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 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, this spring Flood wrote and won passage of legislation that bans abortions after 20 weeks. Introducing into law the concept of "fetal pain," it marked the first time that 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, outside Washington.)

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 to 4 decision in Gonzales v. 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 G. Roberts Jr., who marked his fifth anniversary on the court this fall.

Roberts and Justice Samuel A. Alito Jr., 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. Race, campaign finance and the ability of plaintiffs to sue are some of the issues touched by the court's changing jurisprudence.

But since the Roe v. Wade decision in 1973, no social issue has been as entwined with the court than abortion, nor as dependent on its nuance and 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.

"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, whois 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."

The center's docket of lawsuits challenging state abortion restrictions has grown by a dozen cases in the past two years, President Nancy Northup said.

Flood agrees that his legislation pushes the court's previous boundaries but recites parts of Justice Anthony M. 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."
Shift since 2000

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 to 4 that Nebraska's law violated abortion rights established in Roe and affirmed in Planned Parenthood v. 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.

He noted that the Casey decision affirmed the right to abortion before viability. But he said it also established that "government has a legitimate and substantial interest in preserving and promoting fetal life."

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 her pregnancy.


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"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."

Ginsburg noted that, besides being the first court decision not to require a health exception, it as the first to uphold the ban on a specific procedure.

The "differently composed" court, Ginsburg said, is "hardly faithful" to previous decisions.

One outgrowth of the decision's expansive language on what a woman should know about abortion has been that an increasing number of states require physicians to read scripts about fetal development and consequences of abortion.

Abortion rights proponents call the "informed consent" laws "biased consent" because they substitute language from lawmakers for the words of physicians.

Many states require abortion providers to make ultrasound images of the fetus available to the woman; the Center for Reproductive Rights has filed suit to block an Oklahoma law that requires the ultrasound image be displayed where a woman can see it while a physician describes specific aspects of the fetus.

Nebraska passed a second antiabortion law aimed at "patient-screening" that imposed a wide variety of counseling demands on physicians.

Planned Parenthood of the Heartland challenged the law before it took effect, and a federal judge issued an injunction, saying it was so vague that it would make it virtually impossible for a woman to get an abortion in the state.

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. 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."

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