This morning, the Nebraska state legislature approved the most extreme state law in recent history. The law (LB 1103) would ban abortion after 20 weeks of pregnancy. And yesterday, the legislature passed another extreme abortion restriction (LB 594)—the first-of-its-kind— which requires doctors to perform extensive screenings of women for any "risk factors" before providing an abortion.
The Center for Reproductive Rights has sent Governor Dave Heineman two letters outlining the constitutional issues with these restrictions and asked that he veto them as a result. The governor has said that he plans to sign both bills today.
Both bills suffer from serious constitutional flaws. Among them, the abortion pre-screening bill imposes requirements that doctors cannot possibly comply with. A doctor has to screen for risk factors for post-abortion complications based on an almost limitless range of information published in peer-reviewed journals. It is quite common for studies to reach contested, ambiguous or incomplete conclusions. This bill fails to give doctors any guidance about how to evaluate which studies or findings must be included in their screenings. The U.S. Constitution requires that laws adequately describe the conduct that is prohibited so that people who must follow the law and those that enforce the law can understand their obligations.
The ban on abortion after 20-weeks clearly violates the Constitution as well. For 35 years, states have been prohibited from enacting laws that ban abortion prior to the point at which a fetus is viable outside the womb. The Supreme Court has said that doctors must determine viability as the point at which a fetus can survive outside of the womb differs with each pregnancy. In 1996, a federal appeals court struck down a similar Utah law that banned abortion after 20 weeks of pregnancy, stating that the viability determination was "directly contrary to the Supreme Court authority," and that Utah's "deliberate decision to disregard....precedent set out in Roe, Danforth, Colautti, and Webster, and to ignore the Supreme Court's repeated directive that viability is a matter for an attending physician to determine" showed that the state intended "to prevent a woman from exercising her right to choose [a previability] abortion."