OMAHA, Neb. — Two first-of-their-kind abortion laws in Nebraska have drawn threats of legal challenges, but experts say attempts by abortion-rights groups to block one of the measures from going on the books could backfire.
A ban on abortions starting at 20 weeks — set to go into effect this fall — is based on assertions from some doctors that fetuses feel pain by that stage of development. But it might be allowed to stand over fears that a losing challenge to the law would change the legal landscape for abortion, say lawyers on both sides of the debate.
If foes challenge the law and lose, the court could redefine the measure for abortion restrictions, throwing out viability — when the fetus could survive outside the womb — in favor of the point when a fetus can feel pain. And if future medical advances were to show a fetus can feel pain at an earlier stage, abortions could be restricted earlier.
"It's a balancing act that anybody who wants to challenge the laws is going to have to assess, whether the strategic risks of bringing a lawsuit outweigh the likelihood of a victory," said Caitlin Borgmann, a law professor at The City University of New York.
A challenge "could be seen by some people as too risky," said Borgmann, who testified against the ban during a legislative hearing in February.
The ban is scheduled to take effect in mid-October.
But the other new state abortion law will be implemented July 15. It requires women wanting abortions to be screened by doctors or other health professionals to determine whether they were pressured into having the procedure. They also would have to be screened for risk factors indicating they could have mental or physical problems after an abortion.
Planned Parenthood of the Heartland has been critical of the measure, saying it could be difficult to comply with and could give women irrelevant information. Spokeswoman Susan Allen would not comment on whether a challenge would be filed.
The organization, which runs one of two abortion clinics in Nebraska, planned to meet Monday with reporters. Details have not been released.
Borgmann said it's unlikely an abortion provider that does not perform late-term procedures, in the second trimester — such as Planned Parenthood — would challenge the ban. That type of provider may not have standing in court to fight it and may be more apt to go after the screening law for being "unconstitutionally vague," she said.
Critics of the ban say there is no firm evidence to support the claim that fetuses feel pain, and that the law is an unconstitutional break from more than 35 years of court precedent that sets viability as the dividing line for abortion restrictions. While determined on a case-by-case basis, viability is generally considered to be between 22 and 24 weeks of pregnancy.
The U.S. Supreme Court first legalized abortion nationwide in its Roe v. Wade ruling, the 1973 landmark case based on women's constitutional rights. A 1992 ruling in Planned Parenthood v. Casey upheld the right of women to have abortions before fetuses were viable.
Court rulings have also made it clear that states can take numerous steps to protect fetal life once viability occurs.
But supporters of the Nebraska law say the U.S. Supreme Court's ruling on so-called partial-birth abortion, in which the court for the first time upheld a ban on a specific type of procedure, opened the door to other challenges.
They say the ruling acknowledged states have an interest in preserving fetal life. And they say the court discarded the viability requirement because the so-called partial-birth method could have been used to abort fetuses before they could survive outside the womb.
"The court, in my view, can't uphold this (Nebraska ban) without changing the way abortions are restricted," Borgmann said.
Dr. Leroy Carhart, whose Bellevue clinic offers late-term abortions, is considered to be the most likely challenger of the ban. He's challenged other abortion laws before the U.S. Supreme Court, and his backer, the
New York-based Center for Reproductive Rights, hinted in an April letter to Gov. Dave Heineman that it would be involved in a challenge.
"This bill is clearly unconstitutional and is the most extreme abortion law passed in this country in recent memory," the letter states.
Center spokeswoman Dionne Scott said last week no decision had been made about a challenge. Borgmann said it's possible that because Nebraska's ban on late-term abortions affects so few women, abortion-rights supporters might let it slide.
It "may not be challenged for strategic reasons" but that doesn't mean it's constitutional, she said.
Teresa Collett, a law professor at the University of St. Thomas in Minneapolis who testified for the ban at the behest of National Right to Life, said the ban is "pretty clearly constitutional and (abortion supporters) don't want to waste their resources on a losing battle."
A debate over whether a fetus can feel pain is "a conversation they don't want to have in public," she said, because emerging science is "making it clear that the tiniest patient is a human being."
A challenge to either law doesn't face a time limit. Both legal experts say the court may be more receptive to a lawsuit after the measures go into effect.
"Then you have a concrete set of facts to make the decision on," Collett said.
Still, officials with the Nebraska Catholic Conference and Nebraska Right to Life say they're preparing to defend the laws and consider the ban to be more susceptible to a challenge than the screening law.
"We're in contact with the (attorney general), because he's always promised to vigorously defend (the ban) if it's challenged," said Julie Schmit-Albin, executive director of Nebraska Right to Life.
Attorney General Jon Bruning's office declined to comment about a possible challenge.
Schmit-Albin, who spoke with The Associated Press from the National Right to Life convention going on in Pittsburgh, said there's a lot of talk about Nebraska's ban among her colleagues.
"People across the country are really excited about it because they know where it could go," she said, referring to a showdown in the Supreme Court.