LINCOLN — Nebraska's ground-breaking ban on abortions after 20 weeks could be on shaky footing, following a U.S. Supreme Court action Monday.
The high court refused to hear an appeal from Arizona officials seeking to revive a similar ban, which had been overturned by a lower court.
Attorney General Jon Bruning said the Arizona case does not immediately affect Nebraska. He vowed to defend the four-year-old ban against any court challenges.
But State Sen. Brad Ashford of Omaha, the chairman of the Judiciary Committee, predicted that it will be only a matter of time before Nebraska's law is challenged and overturned. Ashford had voted to pass the ban.
“That's the only conclusion I could come to,” he said. “By not acting, they're saying that viability is the standard in the law.”
Two other supporters of the ban, Omaha Sens. Bob Krist and Pete Pirsch, said the high court action appears to make Nebraska's law more vulnerable. But Pirsch said the action does not necessarily mean that the law is unconstitutional.
The Supreme Court justices offered no reasons for turning down the appeal, as is their custom.
Their rebuff left intact a 9th Circuit Court of Appeals ruling that said the Arizona law was unconstitutional “under a long line of invariant Supreme Court precedents” starting with Roe v. Wade in 1973.
The core message of those decisions, the appeals court said, was that women have a constitutional right to end their pregnancies before the fetus is viable.
Abortion opponents had hoped that the Supreme Court would use the Arizona case to redraw that line. Nebraska had joined with 15 other states in backing the appeal.
Arizona was one of 12 states that followed Nebraska's lead in passing laws banning abortion before viability. The laws prohibited abortions at 20 weeks, the point at which some experts say a fetus can feel pain.
Viability, or the stage at which a fetus can survive outside the womb, is about 24 weeks gestational age. The court has required exceptions to protect a woman's mental or physical health, as well as her life.
The Nebraska law allows few exceptions, permitting later abortions only to protect a woman's life or prevent major physical problems.
Julie Schmit-Albin, executive director of Nebraska Right to Life, said she believes that the courts would take a different view of the Nebraska ban, which focuses strictly on fetal pain, than the Arizona one. The Arizona law banned abortions at 20 weeks based both on fetal pain and protecting women's health from the risks of later-term abortions.
Courts have thrown out Idaho and Georgia bans, both of which were modeled closely after the Nebraska law.
But, citing legal experts with National Right to Life, Schmit-Albin expressed confidence that the Supreme Court would take up the issue eventually and that the court would uphold the Nebraska model.
In the meantime, she said the Nebraska law has worked to stop Dr. LeRoy Carhart of Bellevue from doing later-term abortions in Nebraska.
He is one of the nation's few doctors who perform abortions after 20 weeks. His statements about providing such abortions at his Abortion and Contraception Clinic of Nebraska prompted passage of the Nebraska law.
After the Nebraska ban went into effect, he opened a second clinic outside the state, the Germantown Reproductive Health Services clinic about 30 miles north of Washington, D.C.
Carhart did not return a message seeking comment Monday.
Janet Crepps, a legal expert with the Center for Reproductive Rights, declined to say whether the center will attempt to challenge the Nebraska law.
No court challenges have been filed to date.
But Crepps said the Supreme Court action makes the Nebraska law vulnerable.
“The lower courts would look at it and take it into account,” she said, adding that the 9th Circuit Court ruling “should be persuasive” even if it is not controlling outside of that court's jurisdiction.
Nebraska is within the 8th Circuit Court of Appeals jurisdiction. That court has not considered any cases dealing with a 20-week abortion ban.
In the Arizona case, Judge Andrew J. Kleinfeld, one of the three judges on the appeals court panel, said the justifications offered for the Arizona law were insufficient.
If the state wanted to prevent fetal pain, the law could have required anesthesia for the fetus prior to the abortion, Kleinfeld said. On the question of protecting women's health, he said people are free to do many things risky to their health.
Dr. Paul Isaacson and other Arizona doctors who challenged the state law in court said more than 70 percent of their patients who seek a late abortion do so after either learning of a fetal abnormality or suffering a serious threat to their health.
The high court action marked the third setback for abortion opponents in this court term.
The justices also turned down Oklahoma's appeals of rulings that struck down two anti-abortion measures. One would have prohibited the use of one drug that is used to induce an abortion in the first weeks of a pregnancy. A second would have required costly ultrasound tests for women seeking an abortion.
This report includes material from World-Herald wire services.