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."
Article comments
1 - 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.
2 - Dr Dreadful
That's a real stretch, Ruvy.
3 - 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.
4 - roger nowosielski
Great find, Ruvy.
I'll have to look at it more closely.
5 - 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)
6 - roger nowosielski
Which, then, is her latest article on the First Amendment doctrine?
7 - Ruvy
That's a lot of reading, Dan. I'm glad now that they kicked me out of law school....
8 - roger nowosielski
An over hundred page brief on "Private Speech, Public Purpose."
Thanks a lot, Ruvy.
9 - Ruvy
Yer welcome, Roger....
10 - roger nowosielski
Whatever the pros or cons of the Obama's nominee for SCOTUS, she has a sharp legal mind.
11 - 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.
12 - zingzing
it's also none of your damn business. and keep your hands out of her vagina, while you're at it.
13 - 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).