Nebraska Takes Aim at Roe

Pregnant with their third child, Timothy and Dawn Mosher never thought they would seek an abortion. But five months into Dawn’s pregnancy, doctors diagnosed the fetus with an extreme and irreparable spinal cord defect called spina bifida. This devastating condition would have subjected the Moshers’ child to a brief life filled with incredible pain and, ultimately, a premature death. After careful thought, the Moshers made the excruciating choice to have an abortion in order to spare their child from such a fate.

Timothy Mosher was compelled to publicly share his family’s story this past spring when Nebraska lawmakers seized on flimsy claims about fetal pain in order to ban almost all abortions at or after the 20th week of pregnancy—making it impossible for a woman in the Moshers’ situation to obtain a safe abortion. If anyone could attest to the “raw edges of human existence” that prompt women to seek abortions, as so eloquently described by former Justice Harry Blackmun in the Supreme Court’s Roe v. Wade decision, it would be the Moshers. “We couldn’t force our little girl to live in constant pain and suffering before dying a pre-mature death,” Mosher told a legislative panel.

But Nebraska lawmakers were unmoved by either Mosher’s testimony or sound arguments by the Center and other reproductive rights advocates, who warned them that the law flouts long-established constitutional precedent and endangers women’s health. On April 13, Nebraska’s legislature and governor approved the measure, the most extreme abortion law in recent U.S. history, agreeing only to delay its effective date until October. The Center is now exploring legal options for challenging the ban.

Until now, a dividing line between legal and illegal abortions was determined by the ability of the fetus to survive outside the womb, usually at around 24 weeks. The Supreme Court has repeatedly made it clear that states cannot ban abortion for any reason before that time, and that the exact point at which a fetus is viable must be determined by a physician using his or her medical judgment. By replacing viability with fetal pain—even though there is no credible evidence that a fetus may feel pain at 20 weeks—Nebraska created new grounds for the government to interfere in a woman’s life and cut off her access to abortion. And by seeking to challenge Roe v. Wade before the Supreme Court, the new law threatens to redraw the line for women across the country, threatening their basic right to decide what is best for them and their families.

Indeed, what is particularly disturbing about Nebraska’s abortion ban is that its tight focus on the fetus completely erases the woman—her health, wellbeing, and concerns—from the picture. The Supreme Court has consistently held that even after viability, women must be able to obtain abortions if their lives or health—including their mental health—are at risk. Under Nebraska’s new law, however, abortion is only allowed if a woman is near death or at risk of irreversible physical harm to a major bodily function.

Thus, a woman suffering from a severe mental illness, such as bipolar disorder or schizophrenia, who cannot take the recommended medication due to a pregnancy, or a woman who tragically learns after the 20th week of pregnancy that her fetus has a severe anomaly would have no choice but to carry the pregnancy to term.

The law even explicitly prohibits physicians from providing abortions to women who are suicidal. The callousness with which proponents of this abortion ban view women’s health was made clear during the legislative hearings. When asked what a doctor should do if he or she has a pregnant patient at risk of suicide, one Nebraska lawmaker stated outright that the doctor should simply have the woman committed to a mental health facility for the duration of her pregnancy.

According to Dr. LeRoy Carhart, a Nebraska abortion provider, “the law will make it harder for patients to get an abortion when they really need them, when they are under the most desperate of circumstances, and even when they are clearly medically, morally, and religiously justified.”

Over the years, state lawmakers have made an art of obstructing a woman’s access to abortion through onerous legal restrictions, such as 24-hour waiting periods and parental involvement laws. But rarely have they attacked the central tenets of Roe v. Wade head-on in the way that Nebraska has. “If some of these other anti-abortion bills have been chipping away at Roe v. Wade, Nebraska’s legislation takes an ax to it,” said Nancy Northup, the Center’s president.

Undoubtedly, the most recent Supreme Court abortion case, Gonzales v. Carhart, which upheld the first federal abortion ban, emboldened Nebraska legislators. Some of them believe that the case leaves open the door for states to ban abortion for reasons other than viability. But the law at issue in Gonzales v. Carhart did not ban abortions in general, nor did it ban abortions at any particular point in pregnancy. Furthermore, nothing in the Court’s ruling suggests that a state could ban all abortions at a point prior to viability, nor did it indicate that a comprehensive health exception is no longer required.

There was a good reason the Supreme Court established the limits it did on states’ ability to restrict abortion: it recognized that a woman’s right to control her body and protect her health deserved the utmost protection, and that women are in the best position to decide whether or not to carry a pregnancy to term. Less than 1.5% of all abortions take place at or after 20 weeks gestation, and when they do it is often for the most agonizing of reasons—danger to a woman’s health or life, or, as in the Moshers’ case, a grim diagnosis for the fetus. These are decisions no one wants to have to make, but wresting them away from women and their families would substitute the arbitrary control of lawmakers for a compassionate approach led by families and their doctors.