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FIRST-PERSON: What hath Nebraska wrought?

WASHINGTON (BP)–You can’t keep a good state down. Proving that its state motto, “Equality Before the Law,” truly applies to all its residents, Nebraska has again stepped up to take the lead against the horrific practice of late-term abortion and its main proponent, LeRoy Carhart.

By the overwhelming margin of 44-5, Nebraska’s unicameral legislature passed a bill April 13 that bans abortions after 20 weeks of gestation, except when the abortion would preserve the life or physical health of the mother. Gov. Dave Heineman signed the bill into law that same day.

Nebraska is the state that launched the “partial-birth abortion” debate by banning the procedure favored by its infamous resident, Dr. Carhart. The Supreme Court struck down the statute as an “undue burden” on access to abortion in Stenberg v. Carhart in 2000, but the Bush administration soldiered on and banned the practice in all 50 states through federal legislation.

The Supreme Court finally upheld the federal ban in 2007 in a second case brought by Carhart, Gonzales v. Carhart, and by implication, affirmed the right of states to outlaw the procedure. In so doing, the court seemed to open the door for new state regulations of abortion by expanding the list of constitutionally legitimate state interests for regulating abortion beyond the two enunciated in Roe, the health of the mother and the interest in — as the Court called it — “potential” life.

LB1103, introduced by Speaker Mike Flood, requires abortion providers to determine the baby’s probable post-fertilization age. Abortions past 20 weeks are prohibited, based on medical evidence that babies feel pain by that stage of development. Nebraska is betting that the federal courts — and ultimately, likely, the Supreme Court — will conclude that states have an interest in preventing excruciating pain to an unborn infant as he or she is ripped apart and pulled from the womb that is at least as compelling as the desire to preserve the integrity of the medical profession from the barbarous practitioners of partial-birth abortion that was upheld in Gonzales v. Carhart.

The Nebraska law also takes dead aim at the Supreme Court’s virtually illimitable “health” exception that dates back to Doe v. Bolton, the companion case to Roe v. Wade. Doe permits doctors like Carhart to authorize abortion through full gestation: “[T]he medical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the wellbeing of the patient. All these factors may relate to health,” the court said.

And while Carhart claims that Nebraska’s new law will result in denying abortion to “a woman who has been hospitalized and diagnosed suicidal,” there is every reason to believe that the bar is not nearly that high for authorizing abortions under the constitutional “health exception.” Operation Rescue reported that Dr. Paul McHugh, a psychologist who headed the Department of Psychiatry at Johns Hopkins Hospital for 26 years, examined over 30 medical records subpoenaed from abortionist George Tiller, whose practice Dr. Carhart offered to take over upon his death last year.

Dr. McHugh concluded that Tiller was authorizing abortions at 26 to 30 weeks for “trivial” reasons under the guise of “mental health” concerns, with women stating, for example, “I won’t be able to go to concerts,” or, “I won’t be able to take part in sports.” Dr. McHugh found “no evidence” that any of these abortions was truly necessary to save a mother’s life or physical health.

The new law goes into effect Oct. 15, but Carhart and pro-abortion legal groups such as the Center for Reproductive Rights have already promised a court battle. “This latest anti-woman and anti-health legislation merely strengthens my commitment to fight for women’s reproductive health and rights,” Carhart says.

Let it come. For its part, the Alliance Defense Fund and its alliance of more than 1,600 attorneys will be standing by to defend Nebraska’s new law from Carhart’s attacks, as we have before. If “reproductive health” means that abortionists have the right to inflict the kind of pain and suffering on a baby in the womb that our civilized society found intolerable with convicted animal abuser Michael Vick, here’s hoping that Nebraska continues to lead the way — all the way back to the Supreme Court.
Steven H. Aden serves as Senior Legal Counsel to the Alliance Defense Fund (telladf.org). Aden directs ADF’s litigation efforts in the sanctity of life area from its Washington, D.C., office.

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  • Steven H. Aden