The Nebraska Legislature has passed a law barring abortions after 20 weeks because of the possibility that the fetus could feel pain. The law, approved by the state legislature earlier today and expected to be signed by Gov. Dave Heineman, is a landmark in that it directly challenges one of the key tenets of Roe v. Wade: the viability standard.
In Roe, the Supreme Court recognized viability—the point at which the fetus can live outside the womb—as the point at which states have the right to ban abortion (with exceptions made for the woman's life and health). That was the "compelling" point at which to allow abortion bans, Justice Harry Blackmun opined, "because the fetus then presumably has the capability of meaningful life outside the mother's womb." Therefore, he continued, "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."
That standard was more recently affirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey, a 1991 Supreme Court case that specified viability as "the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions."
The Nebraska bill, essentially, asks the court to rethink that standard. Rather than viability, it uses the possibility that the fetus could feel pain as a new dividing line at which abortions could be banned.
Will the courts turn on almost 40 years of precedent, and trade in the viability standard for one that considers the possibility of fetal pain a more "compelling" point? It’s doubtful: the court has, on numerous occasions, reaffirmed its commitment to the viability standard. Moreover, I think it's important to note here that research suggests fetuses cannot feel pain at 20 weeks, undermining this particular bill's scientific credibility.
Still though, anti-abortion-rights activists say that they see a potential path forward in Gonzales v. Carhart, the court's most recent ruling on abortion, which upheld the partial-birth-abortion ban of 2003. Writing for the majority, Justice Anthony Kennedy said:
"States . . . have an interest in forbidding medical procedures which, in the State's reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus . . . A State may take measures to ensure the medical profession and its members are viewed as healers, sustained by a compassionate and rigorous ethic and cognizant of the dignity and value of human life, even life which cannot survive without the assistance of others."
The National Right to Life Committee thinks that Kennedy's directive, particularly the bit at the end —"even life which cannot survive without the assistance of others"—leaves open the possibility of revising the viability standard. As Olivia Gans, an NRLC spokesperson, told me a few weeks ago, before the law had passed, "What Kennedy was saying was that states can and should look at other variables to figure out what's in the best interest of the state.”
As I wrote a few weeks ago, the anti-abortion-rights community has already scored a victory with the Nebraska law simply by sparking a conversation about fetal pain. What remains to be seen is whether the bill, once signed, can remain law—and, in the process, upend nearly 40 years of Supreme Court decisions.