Weekly Pulse: Nebraska's Sweeping Abortion Ban on Colision Course with Supreme Court

By Lindsay Beyerstein, Media Consortium blogger

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.

Intimidating providers

Monica Potts of TAPPED explains that the laws are meant to have a chilling effect on all abortion providers in Nebraska. In the wake of last year’s assassination of Kansas abortion provider Dr. George Tiller, Dr. LeRoy Carhart of Nebraska began providing late-term abortions. According to Potts, the new abortion legislation is probably designed to run Dr. Carhart out of town.

An anti-choice Catch-22

Robin Marty of RH Reality Check notes the glaring contradictions between the two Nebraska abortion laws: Before 20 weeks of gestation, the state is so concerned about a woman’s health that they will force her to seek a mental health assessment to spare her the trauma of an ill-advised abortion. It seems that Nebraska legislators think women are so fragile that they can’t decide on their own whether an abortion will be unduly upsetting. Yet, after 20 weeks, a woman is not entitled to a “life of the woman” exemption even if a doctor determines that she is likely to commit suicide if she is forced to continue her pregnancy.

The second round of debate was held [Monday] on the Pain-Capable Unborn Child Protection Act, a bill created almost entirely as a vehicle for getting anti-choice legislation challenged and potentially reviewed by the Supreme Court.  Unlike every other anti-choice law that has so far passed in this country, LB 1103 refuses to provide an exemption for a mother’s mental health, regardless of the fact that prior to 20 weeks a pregnant woman’s mental health was so valuable that the state wants to advocate mandatory screenings to protect it.

Vanessa Valenti of Feministing writes of the Nebraska law:

The blatant anti-choice and ableist implications in these bills are just atrocious. Not only will some women be forced to carry their pregnancies to term with no mental health exception, but doctors will be terrified to perform abortions in fear of not correctly adhering to obscure these screening rules.

A collision course with Roe?

Gov. Heineman vowed to defend the new laws against any legal challenges. The Nebraska law bans abortion based on the purported ability of fetuses to feel pain, not their ability to survive outside the womb. The Supreme Court has ruled that states cannot ban abortion of pre-viable fetuses. According to the accepted legal reasoning, if a fetus is too immature to survive outside the woman’s body, the woman has the right to withdraw the support of her body by terminating the pregnancy.

Conveniently, anti-choicers say that they have scientific evidence that pre-viable fetuses can feel pain. This dubious evidence isn’t just a pretext for banning abortion earlier, it puts the bill on a crash course with Roe. If the abortion issue is really about a woman’s right to control her body, then the fetal pain issue is a red herring. A woman can legally inflict pain on a full-grown person if she strikes in self-defense to protect her bodily autonomy. Nebraska is launching a full frontal assault on women’s rights. In Nebraska the pain of a non-viable fetus allegedly matters more than a woman’s freedom. We’ll see what the Supreme Court says about that.

How Justice Stevens’ retirement fits in

The wheels were set in motion just as the leading liberal on the Supreme Court, Justice John Paul Stevens, announced his retirement. In The Progressive, Matthew Rothschild, the son of Stevens’ former law partner, recalls some of Stevens’ key pro-choice opinions over the course of his long career. For example:

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.”

As we look ahead to a Supreme Court confirmation battle, the Nebraska abortion bans illustrate why the stakes are so high. The Court is losing a leading champion of reproductive choice. President Barack Obama will face intense pressure from the liberal base to replace him with a nominee whose record on choice is equally strong. As Scott Lemieux argues in the American Prospect, only a strong liberal will be able to hold the line against the conservative cadre of Scalia, Thomas, Roberts, and Alito.

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New Supreme Court nominee speculation thread

MSNBC's First Read reported today:

Per NBC’s Pete Williams and Savannah Guthrie, administration officials say at least eight names are on President Obama’s list of potential Supreme Court nominees. Six are women and two men. The names: U.S. Solicitor General Elena Kagan, Diane Wood of the 7th Circuit Court of Appeals, Merrick Garland of the DC Court of Appeals, Homeland Security Secretary Janet Napolitano, Michigan Gov. Jennifer Granholm, former George Supreme Court Chief Judge Leah Ward Sears, Sidney Thomas of the 9th Circuit, and Harvard Law School Dean Martha Minow. Of these names, people outside the government but familiar with White House thinking say the serious contenders are Kagan, Wood, Garland, Napolitano, and Granholm. Guthrie adds that Obama is likely to meet next week with key senators to discuss the vacancy. Many of the new additions are about interest group appeasement. And note the growing concern in the liberal/progressive blogosphere about Kagan.

One person who doesn't sound concerned about Kagan is Republican Senator Lindsey Graham of South Carolina:

“I like her,” he said, quickly adding, “and that might hurt her chances.”

Graham, whose support for Justice Sonia Sotomayor last summer was a turning point in her confirmation process, said he liked Kagan’s answers about national security and the president’s broad authority to detain enemy combatants when she was going through her own Senate confirmation.

Both of President Bill Clinton's Supreme Court nominees had received a private stamp of approval from key Republican Senator Orrin Hatch. My hunch is that Graham's kind words for Kagan help her chances with President Obama. He loves to position himself as a moderate between the left and the right.

What do you think?

UPDATE: Chris Bowers made the case for Sears here.

Some Facts on Supreme Court Nominations

I have a whole lot of notes on Supreme Court nominations right now for my law school writing requirement, which is somewhat timely considering that it is on the topic of (you guessed it) Supreme Court nominations, so I thought I might pass on a few quick tidbits before putting together something more comprehensive.

  • More than a third of Supreme Court Justices in American history have (38) come to the high court without any prior judicial experience.
  • Well over half of all Justices -- 60 out of 111 (.pdf), or 54 percent -- have come to the Court with prior experience in elective office. That is to say, a majority of Supreme Court Justices over time have run for and won public office in the past, from city councils all the way up to the Presidency.

So if you hear a pundit intone that someone on President Obama's shortlist to replace Justice John Paul Stevens is unacceptable because they would come to the Court without prior Judicial experience, or that they are not suited for the Court because they had previously worked in politics, do note that these assumptions aren't really grounded in the history of the Court (even if they have come to be accepted in recent years).

John Paul Stevens Announces Forthcoming Retirement

Not a complete surprise, but somehow a bit surprising nonetheless. Here's The Times:

Associate Justice John Paul Stevens, the leader of the liberals on the Supreme Court, announced on Friday that he will retire at the end of this term, setting up a confirmation battle over his replacement that could dominate the political scene this summer.

In a brief letter to President Obama, whom he addressed as “my dear Mr. President,” Justice Stevens said he was announcing his retirement now because he had “concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court’s next term” in October.

I would assume that Barack Obama has already made his selection for this seat -- or he's close to a final decision -- having more than a year to contemplate the possibility of a Stevens retirement. Also despite the fact that the Republicans hold a sufficiently sizable minority in the Senate to block an Obama nominee should they choose to filibuster, it is exceedingly difficult to imagine this level of obstruction, particularly given the bloc of Lugar/Snowe/Collins/Voinovich/Gregg/Hatch/Bond who tend to be deferential to Presidents -- even ones hailing from the Democratic Party -- on Supreme Court nominations. This isn't to say that there isn't going to be a fight, because the Republicans fight everything these days. But I would expect a fairly uneventful confirmation process, one with minor blowups that are treated like major ones, but one that finds a nominee being confirmed relatively quickly and easily.

Supreme Court Gives Immigrants New Rights

From Restore Fairness blog - Guest Blogger: Seth Freed Wessler reposted from RaceWire blog

The Supreme Court today granted immigrants facing detention new rights and protections. The ruling in Padilla vs. Kentucky now requires defense attorneys to accurately advise their non-citizen clients of the potential immigration consequences of pleading guilty to a crime.

There's more...

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