SD Abortion Ban May Pave Way for Nebraska

Daily Nebraskan Online
University of Nebraska at Lincoln

Facts and Figures

In 2000, 1.3 million American women obtained abortions, producing a rate of 21.3 abortions per 1,000 women of reproductive age. The rate declined 5 percent from 1996, when the abortion rate was 22.4 abortions per 1,000 women aged 15-44.

In 2000, 4,250 women obtained abortions in Nebraska, producing a rate of 11.6 abortions per 1,000 women of reproductive age. Some of these women were from other states, and some Nebraska residents had abortions in other states, so this rate may not reflect the abortion rate of state residents. The rate declined 4 percent since 1996, when it was 12.1 abortions per 1,000 women 15-44. Abortions in Nebraska represent three-tenths of a percent of all abortions in the U.S.

Source: Guttmacher Institute

In Nebraska, the following restrictions on abortion are in effect:

– The parent of a minor must be notified or a judicial waiver must be given before an abortion is provided.

– A woman must receive state-directed counseling that includes information designed to discourage her from having an abortion and then wait 24 hours before the procedure is provided.

– Public funding is available for abortion only in cases of life endangerment, rape or incest.

– Abortion is covered in insurance policies for public employees only in cases of life endangerment.

Source: Guttmacher Institute

A handful of women huddled on an Omaha overpass Thursday, shielding themselves from the wind with handmade signs and posters.

In Lincoln, hundreds gather along O Street each year, holding hands to create a human chain.

These protestors rally for the same cause but with very different messages.

Abortion continues to be one of the most emotional and divisive issues in the country. When South Dakota lawmakers approved the country's most far-reaching abortion ban law last month, the state became the first in 14 years to pass legislation directly challenging Roe v. Wade.

And those on both sides of the issue in Nebraska are taking notice.

While federal legislation gets the most attention, state laws increasingly have inspired the court rulings that have shaped abortion laws, said Rick Duncan, professor of constitutional law at the University of Nebraska-Lincoln College of Law.

Although South Dakota's ban has been making headlines, it will fall short of making any changes in the state's abortion services.

“The South Dakota law is basically dead on arrival,'' Duncan said. “It's a noble attempt, but it's completely unconstitutional the minute it's enacted.''

The legislation, signed Monday by Republican Gov. Mike Rounds, makes it illegal to terminate a pregnancy except in rare cases when it is necessary to save the mother's life.

The bill represents a symbolic act for the anti-abortion cause, Duncan said, rather than an applicable political measure. The ban directly contradicts the landmark U.S. Supreme Court decision, Roe v. Wade, legalizing abortion nationwide in 1973.

But other states are taking notice: Ohio, Indiana, Georgia, Tennessee and Kentucky also have introduced similar measures recently.

Duncan said such legislation would likely not go far in Nebraska. Some state legislators' penchant for filibustering controversial bills would quash any possible legislation pertaining to a full ban on abortion.

But local anti-abortion activists remain hopeful those states pursuing expanded abortion restrictions will encourage Nebraska lawmakers to follow suit.

“There is obvious interest out there,'' said Greg Schleppenbach, director of anti-abortion activities for Nebraska Catholic Conference. “This frontal attack of current laws on abortion is about restoring a full protection of human life.''

However, Schleppenbach said South Dakota's progressive action depends on a lot of factors and leaves a lot of questions – namely the assurance of a majority conservative Supreme Court.

Because abortion restrictions involve constitutional law, Supreme Court justices must hear any legislation relating to the issue, Duncan said.

Schleppenbach said the appointment of conservative-leaning justices Samuel Alito and John Roberts makes a possible four votes in favor of overturning Roe v. Wade – one vote shy of making the ban a majority favorite on the nine-judge panel.

“We don't even know if we can be certain of Alito and Robert's votes, so there are a lot of assumptions that come with the timeliness of the ban,'' he said. “If it were to go to the Supreme Court, we would need another change in justices.''

At 85, Judge John Paul Stevens is the oldest member of the court and has been rumored of retiring because of poor health. His retirement could open up the appointment of a conservative justice to possibly overturn Roe v. Wade, Schleppenbach said, but that's still a lot of “what ifs.''

The ban's failure in the Supreme Court would be damaging to the anti-abortion cause, Schleppenbach said, by reaffirming Roe v. Wade and ensuring less successful future legislation.

Because the South Dakota ban violates a constitution right, Planned Parenthood intends to file a suit against the law, said Bobbie Kierstead, vice president for public affairs for Planned Parenthood Nebraska and Council Bluffs.

In addition to the near full abortion ban, the bill grants no allowances for women who have been raped or victims of incest, provides for criminal charges against doctors who perform abortion, prohibits the sale of emergency contraception and asserts that life begins at fertilization.

Kierstead said the law violates women's rights of privacy with their doctors in making healthcare decisions.

“The most important issue is that women have the basic right to make their own decisions with their doctors,'' she said. “Those decisions should not be made by the government in a one-size-fits-all way.''

Kierstead said state lawmakers should focus on enacting prevention methods to reduce the number of unwanted pregnancies. According to a study released Tuesday by the Guttmacher Institute, a nonprofit organization involved in reproductive health research, Nebraska ranked last in the nation is preventing unintended pregnancies.

Through increased contraception access and sexual education, Nebraska could decrease its public health problems, Kierstead said.

But Schleppenbach said outlawing abortion is an important step in reducing health issues facing women.

“Simply making abortion illegal is not the only goal,'' Schleppenbach said. “We still have social obligations to women.''

Schools and businesses should make policies more flexible to mothers and women interested in having children, he said, to include longer maternity leaves and allowances for family-related absences. Other resources, like counseling and family planning, could reduce women's desperation to take dangerous measures to obtain abortions if illegalized.

Duncan said less far-reaching laws restricting abortion would have more luck in the Supreme Court. Legislation requiring sonograms as part of the informed consent before abortions could reduce the number of procedures, while not interfering on women's right of choice.

Partial birth abortion legislation also could be more successful for anti-abortion activists, Duncan said. Following the passage of South Dakota's ban in February, the Supreme Court agreed to decide whether a federal law banning partial birth abortion is constitutional. The law passed Congress in 2003 but has been struck down by three federal appeals courts and has yet to take effect.

So as abortion continues to divide the country, some of the busiest battlegrounds this year could be state and federal courts. With stakes high for members of both sides of the argument, activists will be paying close attention to developing legislation.

“Everyone wants to reduce abortions,'' Kierstead said. “Reducing abortion should be an issue that brings people together.''