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."