Wednesday, April 14, 2010

Nebraska Bill Now Nebraska Law [Jay Watts]

The Nebraska Fetal Pain Bill (discussed here) is now law, officially signed by Governor Dave Heineman on Tuesday . Starting in October, it will be illegal to perform an abortion after the 20th week of pregnancy except where the mother's life or permanent physical health are directly threatened by the pregnancy. The legal challenges are already being planned and so let the court cases commence.

I wanted to highlight one particular aspect of the discussion that interests me again. Nancy Northup, president of the Center for Reproductive Rights is quoted as saying the following:

"It absolutely cannot survive a challenge without a change to three decades of court rulings,"

This sort of indignation is silly as she knows very well that this is exactly the point of the legislation in question. It intends to challenge previous court rulings. But Ms. Northup's statement misrepresents the facts as well. You see, we are not looking at three decades of unmodified legal language as to when the state is allowed to restrict abortion in the interest of the protection of the unborn human life.

In fact, the Supreme Court has already revisited this and modified its stance before. In Planned Parenthood v. Casey (1992) Justices O'Connor, Kennedy, and Souter wrote the majority opinion and overturned the strict trimester language used in Roe v. Wade (1973) as to when states might be allowed to restrict the practice of abortion. Justice Harry Blackmun had written in Roe that a state could not restrict abortion at all in the first trimester, and then could restrict second trimester abortions in balance with the health of the mother, and could prohibit third trimester abortions with exceptions to the health of the mother. The “health exception” in Doe v. Bolton (1973) made all of this language meaningless because it so broadly defined the criteria for health of the mother, but the supporters of Roe/Doe never seem to acknowledge that. So these restrictions were felt as genuine, or at minimum have been repeatedly championed as legitimate in abortion debate. The plurality in Casey, while insincerely wringing their hands about “stare decisis” and a need to abide by precedent forcing us to accept unpopular decisions, threw out the trimester language altogether and established a broad right to an abortion up to viability without any “undue burden” being placed upon women by the State. This was a change that is celebrated by the abortion rights supporters, but it is undeniably a change.

So this proves that the Supreme Court can review its previous decisions and modify its language if given compelling reason. Any claim that three decades of established law on when it is permissible to restrict abortion stands against this new law is just flat out wrong. This law challenges the restriction limits of Casey which challenged the restriction limits of Roe.

In addition, as I said in my previous post the reasoning behind the throwing out the trimester criteria was because they wanted to establish a single, recognizable, and non arbitrary line. They reasoned that viability was that line because it is “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman...” So the basis for restriction must not be arbitrarily set and it must arguably establish that the independent existence of the second life can reasonably be the object of state protection beyond the rights of the mother. Will the 20 week limit based on the ability of a fetus to experience pain meet that criteria? Who knows? But there looks like there is room to work in my opinion. Supreme Court cases on abortion routinely appeal to the latest evidence in consideration of the rights of the unborn, so introducing new evidence to them for consideration is certainly legitimate.

Keep in mind as well, that even in Casey, there is a peculiar line that indicates women are consenting to restriction from the state when they wait too long to obtain an abortion. “In some broad sense it might be said that a woman who fails to act before viability has consented to the State's intervention on behalf of the developing child.” This is certainly not language that closes the door on reasonably argued restriction at a later point and further fuzzies our understanding on what “undue burden” objectively means.

Legal language on abortion is weird and unclear. Justice Scalia discussed that at length in both his dissent on Casey and his dissent on Stenberg v. Carhart(2000). In the latter he wrote:

“In the last analysis, my judgement that Casey does not support today's tragic result can be traced to the fact that what I consider to be an 'undue burden' is different from what the majority considers to be an 'undue burden' – a conclusion that can not be demonstrated true or false by factual inquiry or legal reasoning. It is a value judgement... There is no reason for anyone who believes in Casey to feel betrayed by this outcome. It has been arrived at by precisely the process Casey promised – a democratic vote by nine lawyers, not on whether the text of the Constitution has anything to say about this subject... but upon the pure policy question whether this limitation upon abortion is 'undue' - i.e., goes too far.”

So what will happen when this law is challenged should it reach the highest court in the land? Your guess is as good as mine. The problem is that the Supreme Court has repeatedly proven that they are capable of and willing to bizarrely rationalize any and every decision they make in reference to abortion. I could say more, but I would rather end with one more excerpt from Scalia in his dissent on Stenberg:

“ I cannot understand why those who acknowledge that, in the opening words of Justice O'Connor's concurrence, '[t]he issue of abortion is one of the most contentious and controversial in contemporary American society,' persist in the belief that this Court, armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If for only the sake of its own preservation, the Court should return this matter to the people – where the Constitution, by its silence on the subject, left it – and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.” (emphasis his)

So while I find the moral principle undergirding this law tragically flawed, that human life ought to be protected because it can feel pain, I am optimistic whenever a legitimate shot can be taken at the status quo. I look positively on any and all assaults by the State's on Casey & Roe/Doe, as I do any opportunity to hear our opponents defend their grisly position in the public square. The Supreme Court through judicial fiat took something that did not belong to them. Our right to decide locally what kind of moral community we wish to craft. They took that right while smugly acknowledging that they haven't the slightest clue what the unborn humans truly are. (more on that in a later post) It was not their's to take, and we must wrestle it back. So I say let the challenges continue and never let them be left alone.


  1. Jay, glad you're posting on this. How do you think this will interact with Doe? Most pro-aborts don't want to admit what the health exception in Doe really means. This is obviously a much more narrow health exception. Do you foresee the court's striking it down on those grounds? And if they don't, do you think it will actually be enforced.

    I believe (but haven't googled this--perhaps you can confirm) that Kansas, of all places, has a similarly narrow health exception which was not struck down but was flouted by, of course, Tiller, without legal reprisals. Now, I always wondered if the Supreme Court didn't strike down the Kansas narrow health exception as too narrow (vis a vis Doe) because they thought perhaps it wouldn't be enforced, as in fact it apparently was not, so the point would be moot.

    What are the odds that something similar happens here?

    I'm always concerned when pro-lifers think we've won a victory and we haven't. Case in point: The federal BAIPA *without enforcement measures*. Last I heard, Christ Hospital in Illinois, which started the whole BAIPA thing, hadn't stopped performing labor-induction abortions. So what did we accomplish with the BAIPA? Could we be saving some lives by bluff?

  2. Hey Lydia!

    I am going to respond more fully tomorrow, but a quick reply was in order.

    I hope that the courts actually engage the health exception since it is tied to a new limit. You are right about Kansas, but the Kansas courts ruled that mental health counted in the irreversibly damaged systems. Obviously that is a ridiculous stretch of mental health, but the whole mental health thing is so absurd at this point so, hey, why not?

    Kansas was trying to fix that this year, but the Kansas senate would not support the bill and the governor shot down the end run by congress.

    I will post more later as I am done for the day, but I may do a new post tomorrow on all of this because you bring up some great points.


  3. "the Kansas courts ruled that mental health counted in the irreversibly damaged systems."

    To get clear: You mean that even though the Kansas legislature wrote it in such a way (I don't remember the wording, but it was pretty clear) that it was clearly supposed _not_ to include mental health, the Kansas state supreme court interpreted the law to _include_ mental health?

    That's nuts, but it does help to explain why SCOTUS didn't strike down the Kansas law and also how Tiller got away with it. Thanks for the info.

  4. Yeah the argument is even dumber than that. They ruled that the health exception, however it was worded, must include the mental health or else it would be un-Constitutional. Which of course was the intent of the law, but whatever. Since the lower court was in agreement with the precedent of the higher courts there was no need for review. So Kansas tried to reword it to expressly say "THIS DOES NOT INCLUDE MENTAL HEALTH!" and the Senate and the Governor wanted none of it.

    I am still going to try to to respond to your comment in depth tomorrow. Went out of town today to speak to a Rotary club and a few pastors and was prepping yesterday and on the road all day today.


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