The Washington Post today looks at the gradual and deliberate erosion of Roe in state legislatures beginning in Nebraska where the speaker, Michael Flood, did whatever he could to shut down a specific abortion provider.
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. ...Critics of abortion hail the law as the most prominent and promising outcome of the Supreme Court's 2007 decision, in which, coincidentally, Carhart was the lead plaintiff.
The key component in the Court's 2007 decision was Justice Kennedy's opinion. The surge in anti-abortion legislation from the states appears to hang on what Kennedy wrote.
"I believe the decision was like planting a bunch of seeds, and we're just starting to see the shoots popping out of the ground," said Roger Evans, whois in charge of litigation for Planned Parenthood of America.
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 agrees that his legislation pushes the court's previous boundaries but recites parts of Justice Anthony M. Kennedy's majority opinion in the 2007 decision to justify the effort.
"Absent the holding in Gonzales, I don't think Nebraska would have any ability to even propose a bill like this and see it held constitutional," Flood said in a recent interview.
"I think Justice Kennedy's decision opened the door and spoke to me to the point I wanted to be convinced of before I started down this path."
Kennedy? He was convinced of government's interest in protecting "the unborn" and -- in a key part of his opinion that enraged many, including Justice Ginsburg -- "in making sure women knew the consequences of their actions..."
Meanwhile, Nebraska's Flood has been successful in his efforts to stop abortions after 20 weeks, opening up the floodgates in other state legislatures, it would appear.
