As noted on Rachel Maddow, a law was just passed targeting late abortions performed by the doctor that helped to handle murdered Dr. Tiller's clientele. Actually, we have a twofer
Yesterday, Nebraska’s Republican governor Dave Heineman signed a sweeping new law that criminalizes almost all abortions after 20 weeks’ gestation and another bill that forces women to undergo extensive mental health assessment prior to obtaining an abortion before 20 weeks.
The second law is ironic given the first:
grants exceptions only in cases of medical emergency, the pregnant woman’s imminent death, or a serious risk of “substantial and irreversible physical impairment of a major bodily function,” a provision experts interpreted as an effort to exclude an exception based on a woman’s mental health.
Thus, one law is concerned with mental health when it might burden the choice, the other ignores it when it might be the reason for the choice. The law also would not allow abortions in various cases when the fetus has some severe abnormalities. As to the pain issue, evidence twenty week fetuses feel pain is disputed. And, to the degree it would burden the women, the fetus couldn't trump even if it was clear.
The hope is that Justice Kennedy will vote the way he did in Gonzales v. Carhart. Though consistency is perhaps a bit too much to hope for, lower courts need not be convinced by that ruling. It upholds a barrier to one procedure, not a complete "a substantial obstacle to late-term, but previability, abortions." Fetal pain is not the test of "viability." As the NYT article notes:
The law it replaces, similar to those in many other states, banned abortions after a fetus reaches viability, or can survive outside the womb. This is determined case by case but is generally considered to come around 22 weeks at the earliest.
I'm unsure how much this matters since Webster suggests a state can play it safe, in effect, providing a safety net around the outer limits of viability which provides a couple weeks at least of wiggle room. Kennedy did say laws can recognize a "profound respect for the life within the woman," but not over the significant health risks of the mother. Past rulings included mental health here. This would still not cover one class of late term abortions -- severe fetal abnormalities. For instance:
Take Tim Mosher, who testified before the Nebraska Judiciary Committee this past February at the request of Trust Women PAC. Tim and his wife, Dawn, learned at 20 weeks that their baby was suffering from the most severe level of untreatable Spina Bifida. After consulting with medical experts and their families, they decided, in Tim's words, that, "We couldn't force our little girl to live in constant pain and suffering before dying a pre-mature death." But under LB 1103, if the woman's life isn't in danger -- one of the few health exceptions in the bill -- parents who find themselves in the same situation as Tim and Dawn in the future will be forced to carry these painful, ultimately fatal pregnancies to term.
Some states, even a few conservative ones, even allow state Medicaid funding to go for such cases. Cases like this are controversial -- the focus tends to be on the woman's health alone -- but these cases are of the narrow cases where even those with fairly strict views on this matter are willing to make an exception. And, laws like this underline the myriad of often complex regulations targeted toward abortion -- encouraged by Casey and Gonzalez v. Carhart* even more so -- that chip at abortion rights, often hurting those in very troubling cases. Finally, a nod to Stevens in one of the links above:
In the 2000 Nebraska “partial-birth-abortion” case, Stevens stated: It is “impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty.”
Well, not in the minds of some.
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* Pre-Casey, the Supreme Court followed a strict scrutiny policy that was more wary of limitations than under the "undue burden" rationale, and provided less flexibility to those laws focused upon the embryo or fetus over the woman.
Casey provides judges more wiggle room (see here) while later cases showed that the Supremes do not favor "facial challenges." This leaves open laws that can have many unconstitutional applications while making health providers wary about breaking them, protected conduct in danger of being violated.