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Sanity-Checking Abortions

Want to terminate your pregnancy? Under a new Nebraska law, you’ll have to prove you’re not crazy first.

Nebraska Governor Dave Heineman signed two new laws restricting abortions on Tuesday. One made it illegal to perform an abortion after the 20th week of pregnancy, with exceptions only in the case of a major medical risk to the mother. That new law appears to be aimed in particular at Dr. LeRoy Carhart, a retired Air Force Officer who is one of the only doctors willing to perform abortions in Nebraska. Like Dr. George Tiller—who was murdered by a pro-life activist last year—Carhart is particularly known for his willingness to perform late-term abortions, as well as for having brought two suits defending the legality of what opponents call “partial-birth abortion” all the way to the Supreme Court. The other law requires women to get a mental health screening demonstrating they are making the decision of their own will before having an abortion.

Legislatures have been trying to restrict abortion since Roe v. Wade made it legal in 1973. But the Nebraska laws are controversial because the way they restrict abortions are new. The law limiting late-term abortions is based on the idea that more-developed fetuses feel pain. But in both Roe v. Wade and Planned Parenthood v. Casey the Supreme Court held that women should be allowed up until the point where the fetus was viable outside the womb without considering the issue of fetal pain. Allowing a new fetal pain standard would mean overturning these well-established precedents—although it’s certainly possible that our currently conservative Supreme Court would be willing to take that step.

The other law, known as the Women’s Health Protection Act, requires women to be screened for any factors that might cause complications during an abortion. As the name implies, the bill is supposed to protect the health of the mother. But among other things the bill requires women considering  an abortion to undergo a psychological evaluation to ensure they are not being pressured to have the abortion. Women should certainly have the option to seek help if they are being coerced into getting an abortion against their will. But as adults we are not normally required—even when making important decisions—to prove that we are competent to choose for ourselves and not acting under duress. By making women undergo an onerous, unpleasant, and ultimately subjective screening process, the law will make it much more difficult to obtain a legal abortion. But that’s the real point of law: to make it difficult for women to get abortions at all.

Creating administrative obstacles to getting an abortion and bullying women into carrying their pregnancies to term is not the right way to reduce the number of abortions. It would be better to make sure that women have access to health care and family planning services and so that they can make responsible choices for themselves about whether or not to have children. Now, in any case, with staunch abortion-rights defender John Paul Stevens retiring from the Supreme Court—and with both Nebraska laws certain to face court challenges—the fight over abortion rights shifts to the upcoming confirmation hearings for the our next Supreme Court justice.


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