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Nebraska’s New Abortion Laws Raise Constitutional Issues

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On April 13, 2010, the Governor of Nebraska signed two new abortion laws. Neither prohibits abortion per se, and both are based on express legislative findings which attempt to define and defend legitimate state interests. Both are complex and raise sufficient constitutional issues that review by the Supreme Court is likely.

Preliminarily, and in the interest of disclosure, I have no religious objection to abortion per se, and generally agree with the Supreme Court's 1973 Roe v. Wade decision as augmented by its recent progeny discussed below. However, I think it would be extremely perverse for the Court to overturn a state abortion restriction merely because it is predicated on the demonstrated capacity of a twenty week old fetus to experience pain — as one of the two new Nebraska statutes is. To do so would accord less significance to fetal pain than to pain maybe or maybe not experienced by a condemned murder during his execution by lethal injection. I also find it inexplicable that in some circles there appears to be far less concern about fetal pain during an abortion than about pain experienced by an unwanted puppy or a cute baby seal. We have no cute baby seals but we do have four loving dogs; I could abide neither the thought of causing them unnecessary pain nor the company of anyone who would inflict it. So much for my personal views as a human. Now, on to my views as a lawyer.

Roe v. Wade, the leading 1973 Supreme Court abortion decision, expressly did not attempt to decide when "life" begins. Instead, the Court decided the case based on the rights of the states to protect mothers-to-be as well as fetuses with the "potentiality of human life." The Court concluded that there are compelling but separate, and at times conflicting, state interests as to both. The Court relied upon expert evidence that until about the end of the first trimester,

mortality in abortion may be less than mortality in normal childbirth. It follows that . . . a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. (emphasis added)

The Court cited as examples of permissible state regulation that abortions prior to the end of the first trimester only be performed by physicians or other certified technicians in appropriate facilities. Beyond that,

the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

When the fetus becomes viable, is capable of more than momentary survival outside the womb,

state regulation protective of fetal life . . . has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion . . . during that period, except when it is necessary to preserve the life or health of the mother. (emphasis added)

Based on the evidence as to viability as it existed in 1973, now more than thirty years ago, the Court decided that "viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks."

There was a murky area between the end of the first trimester at twelve weeks and viability at from twenty-four to twenty-eight weeks. In Planned Parenthood of Southeastern Pa. v. Casey and later in 2007 in Gonzales v. Carhart, the Court dealt with it. Carhart provides rather graphic descriptions of the late term partial birth abortions with which it deals. It is nevertheless worth at least skimming.

Carhart concerns a 2003 federal statute (18 U.S.C. 1531) imposing criminal penalties on any physician performing a partial-birth abortion by intentionally causing vaginal delivery of a living fetus to the point when the entire head or any part of the fetal trunk past the navel exits the mother's body in order to kill the fetus. An exception was provided when necessary

to save the life of a mother . . . endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.

Oddly, the 2003 federal statute did not apply to Dilation and Extraction abortion procedures in which the fetus is "removed in parts" and hence is not alive when delivery begins. The Nebraska fetal pain statute (commented upon below) applies to all Nebraska abortions during and following the twentieth week after conception. The basis for the Carhart decision nevertheless seems applicable. The Carhart court approved

the Act's stated purposes . . . [of] protecting innocent human life from a brutal and inhumane procedure and protecting the medical community's ethics and reputation. The government undoubtedly "has an interest in protecting the integrity and ethics of the medical profession." . . . Moreover . . . the government may use its voice and its regulatory authority to show its profound respect for the life within the woman. . . . The Act's ban on abortions involving partial delivery of a living fetus furthers the Government's objectives. Congress determined that such abortions are similar to the killing of a newborn infant.(internal citations omitted)

The Court in Carhart also dealt, at least tangentially, with the notion of informed consent. It noted that many doctors prefer not to disclose precise details of a contemplated abortion.

The State has an interest in ensuring [that] so grave a choice is well informed. 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, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.

A. Nebraska's new Informed Consent legislation covers abortion from conception forward. The steps needed to secure informed consent appear to be related to the state's interest and do not appear to be excessive.

Among other things, the required procedures include informing the pregnant woman of the nature and severity of any medical problems associated with the specific type of abortion contemplated, of the name of the physician to perform the abortion, of available alternatives to abortion, that she cannot be compelled by anyone to have an abortion, that medical assistance benefits may be available for prenatal care, childbirth, and neonatal care and that the father is liable to assist in the support of her child, even if he has offered to pay for the abortion. Certification  by a medical professional that the woman does not appear to have a perception of compulsion or to be under duress, based on an examination at least one hour prior to the contemplated abortion, is required. The woman must also certify that she has been advised of the matters contemplated by the statute and appropriate records must be kept. In the case of a minor,

If a physician performed an abortion on . . . a minor without providing the information required in section 28-327 to the pregnant woman’s parent or legal guardian, then the physician bears the burden of proving that the pregnant woman was capable of independently evaluating the information given to her.

While some of the new Nebraska informed consent provisions seem go beyond the limits set by Roe v. Wade, they seem to be generally consistent with the more recent Carhart decision, and it is nowhere apparent from Roe v. Wade that informed consent of the pregnant woman is unnecessary or undesirable; reasonable state-prescribed criteria for obtaining appropriately defined informed consent seem appropriate. To the extent that specific Nebraska requirements are found constitutionally unacceptable, the statute provides, "If any section in this act or any part of any section is declared invalid or unconstitutional, the declaration shall not affect the validity or constitutionality of the remaining portions." A few of them, perhaps the requirement of a sonogram, could probably be stricken without causing substantial harm to the intent of the statute.

B. The Pain-Capable Unborn Child Protection Act is the more "meaty" of the two statutes. It severely limits abortions to be performed during or following the twentieth week after conception, permitting them only when found reasonably necessary for the life or physical (as distinguished from mental) health of the mother-to-be or of another fetus. It does so regardless of the type of abortion to be performed. The physical health exception is applicable when,

in reasonable medical judgment. . . she has a condition which so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function. . .

The date when conception occurred is to be determined by a physician. In the case of an emergency, the requisite medical determination relates to both the nature of the emergency and the medical impact of going full term.

The new Nebraska law is expressly based on a legislative finding that "At least by twenty weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain . . ." The statute states,

It is the purpose of the State of Nebraska to assert a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.

The statute then relates the evidence upon which it relies. The Nebraska statute is not pegged to viability, and the recent Carhart decision appears to have diluted the significance of viability somewhat. Nevertheless, if substantial evidence now exists that viability currently occurs at twenty weeks rather than at twenty-eight or twenty-four weeks, it might have been a good idea for the Nebraska Legislature to recite it in the same detail as it recited its pain findings.

Although, as noted above, the nature of the state interest between the beginning of the second trimester and the end of the twenty week period following which, according to the new Nebraska law, a fetus can experience pain was rather murky under Roe v. Wade standing alone, the Court in Roe v. Wade did note that a state is

free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important [410 U.S. 113, 166] state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician

In his concurring opinion in Roe v. Wade, Mr. Justice Stewart wrote,

The asserted state interests are protection of the health and safety of the pregnant woman, and protection of the potential future human life within her. These are legitimate objectives, amply sufficient to permit a State to regulate abortions as it does other surgical procedures, and perhaps sufficient to permit a State to regulate abortions more stringently or even to prohibit them in the late stages of pregnancy. But such legislation is not before us . . . . (emphasis added)

It seems consistent and reasonable to argue that as a fetus develops following the first trimester, the state's interest in it increases proportionately, and that even before viability is imminent (at twenty-four to twenty-eight weeks) the state's legitimate interest in the fetus may approach if not reach its level of legitimate interest at the point of viability. The recent Carhart decision supports this view.

Like the Informed Consent act, the various provisions of the Pain-Capable Unborn Child Protection Act are severable:

If any one or more provisions, sections, subsections, sentences, clauses, phrases, or words of the Pain-Capable Unborn Child Protection Act or the application thereof to any person or circumstance is found to be unconstitutional, the same is hereby declared to be severable and the balance of the Pain-Capable Unborn Child Protection Act shall remain effective notwithstanding such unconstitutionality. The Legislature hereby declares that it would have passed the Pain-Capable Unborn Child Protection Act, and each provision, section, subsection, sentence, clause, phrase, or word thereof, irrespective of the fact that any one or more provisions, sections, subsections, sentences, clauses, phrases, or words of the Pain-Capable Unborn Child Protection Act, or the application of the Pain-Capable Unborn Child Protection Act, would be declared unconstitutional.

With specific language citing viability and pain feeling capability as alternative bases for the state interest, the Court might have less difficulty with the new Nebraska statute than without viability as as alternative ground. Should the legislature wish to do so, it is probably not too late to insert appropriate language to that end.

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About Dan Miller

  • Ruvy

    Hmmm….

    States rights strike again!! We are going to see more and more reminders of the “Federal” nature of the American federation as the would-be dictator in Washington keeps going down the N’krumah road of legislating dictatorship into existence, one law at a time.

  • http://blogcritics.org/writers/dr-dreadful/ Dr Dreadful

    That’s a real stretch, Ruvy.

  • http://ruvysroost.blogspot.com Ruvy

    This is the real stretch, DD. The N’Krumah method was not merely with laws but with appointments and packed courts. This is more proof that the economic fascism you have been placed under will continue to extend itself to limiting YOUR free speech rights. The Nebraska laws are not merely challenges to abortions, they are assertions of states rights – which as Dan Miller implies (if he doesn’t state so outright) will be what is needed to maintain a rapidly eroding wall of rights.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Great find, Ruvy.

    I’ll have to look at it more closely.

  • http://pajamasmedia.com/blog/author/danmiller/ Dan(Miller)

    Ruvy, the article you link refers to this lengthy article by Ms. Kagan; it was 101 pages long (single spaced) in the version I found earlier today and I haven’t had an opportunity yet to read, much less digest, it and therefore (a) don’t understand what she said, (b) don’t feel that I can comment on it and (c) don’t have any idea whether or to what extent it may reflect her current views. Over the years, she has changed some of them, which I consider a good thing. I’ll try to get to it later today, and post a comment about it today or tomorrow.

    Here is an article on her nomination to the Supreme Court published elsewhere on May 10. If you look at it, please look also at my comment #14 there. The May 10 article was intended to augment this earlier article on how to evaluate a potential Supreme Court nominee.

    There is clearly a nexus between the Nebraska abortion statutes and states’ rights. However, as noted in the article, I think the new statutes are compliant with Roe v. Wade and its progeny and even with the past diminution of states’ rights, think it should pass Supreme Court muster — particularly if the modest change I suggested is adopted.

    Dan(Miller)

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Which, then, is her latest article on the First Amendment doctrine?

  • http://ruvysroost.blogspot.com Ruvy

    That’s a lot of reading, Dan. I’m glad now that they kicked me out of law school….

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    An over hundred page brief on “Private Speech, Public Purpose.”

    Thanks a lot, Ruvy.

  • http://ruvysroost.blogspot.com Ruvy

    Yer welcome, Roger….

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Whatever the pros or cons of the Obama’s nominee for SCOTUS, she has a sharp legal mind.

  • http://samsonblinded.org/blog/ Mark @ Israel

    Whatever is the reason for abortion, it is still considered taking the life of an unborn child. Whether it fells pain or not, it has life. Because of this, no one and nothing has the right to take it.

  • zingzing

    it’s also none of your damn business. and keep your hands out of her vagina, while you’re at it.

  • http://opinion-forum.com Tom Carter

    As I’ve written earlier, I’m pro-choice, but by the barest of margins. My principal reason for taking that position is that abortions will happen no matter what the law states, and I want women to have safe, legal alternatives.

    Along with some legal scholars, I think Roe v. Wade is bad law, mainly because it created a constitutional right to privacy which doesn’t exist in the Constitution and isn’t applied broadly. However, I wouldn’t want to see it overturned because it has served for many years as the means of making safe and legal (and appropriately restricted) abortion available.

    What I strongly disagree with, and part company with many who are pro-choice, are such ideas as partial-birth abortion (brutality in any terms), late-term abortions in general except to protect the mother, abortions for minors without parental (or, in some cases, judicial) consent, and denial of the right of fathers to even be informed (whether they want to know or not).