Washington Post: Will states consider new tests for 'Roe'?

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By Robert Barnes
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"Mike Flood, the 35-year-old speaker of Nebraska's legislature, had a problem: He wanted to stop the state's well-known abortion provider from offering late-term abortions.

A long line of Supreme Court precedents seemed to stand in his way. But Flood believes that a 2007 decision offers hope for him and other state legislators looking for ways to restrict abortion.

Using that decision as a road map, this spring Flood wrote and won passage of legislation that bans abortions after 20 weeks. Introducing into law the concept of "fetal pain," it marked the first time that a state has outlawed the procedure so early in a pregnancy without an exception for the health of the woman

The law shut down LeRoy Carhart, the provider who had planned to expand his practice outside Omaha and provide late-term abortions to women across the Midwest.

The importance of Flood's bill is likely to be felt far beyond Nebraska. Abortion opponents call it model legislation for other states and say it could provide a direct challenge to Supreme Court precedents that restrict government's ability to prohibit abortion before a fetus can survive outside the womb. (It also prompted Carhart to shift his practice east, and he has since opened a late-term practice in Germantown, outside Washington.)"

"The Center for Reproductive Rights concluded that in 2010, state legislatures 'considered and enacted some of the most extreme restrictions on abortion in recent memory, as well as passing laws creating dozens of other significant new hurdles.'"

The center's docket of lawsuits challenging state abortion restrictions has grown by a dozen cases in the past two years, President Nancy Northup said."

"Flood's bill, which went into effect in October, bans abortion after 20 weeks except when a woman's life is in danger or to save an additional fetus in the womb. It contains no exception for a woman's mental health, or because of the discovery of a fetal anomaly.

Most states' abortion bans, including Nebraska's, begin at 22 or 24 weeks, which in most cases is considered the earliest a fetus could survive outside the womb. The new Nebraska law seems to provide a direct challenge to Supreme Court precedent that government may not unduly burden a woman's right to an abortion pre-viability."

"He provides the specific citation from Kennedy's opinion: 'On Page 163, 'the court has given state and federal legislature wide discretion to pass legislation in areas where there is medical and scientific uncertainty.' "

"Flood understands that he and Ginsburg are in disagreement. 'Clearly my bill walks away from viability as a standard and instead substitutes a scientific standard that I think the state of Nebraska has a legitimate and substantial interest in preserving and promoting fetal life at that point.'"

"The Center for Reproductive Rights's Northup said the Nebraska law is not grounded 'in either the Constitution or science.' She said she believes it to be 'clearly unconstitutional" and adds: 'The fact that it has not been challenged yet does not mean that it won't be.'"

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