Could Neb. Abortion Law Spark Supreme Court Battle?

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WASHINGTON -- Some legal experts say the hot button topic of abortion could very well be headed to the Supreme Court again.

According to legal experts, the Nebraska governor's signing of a new law Tuesday that further restricts abortion has all the makings of a Supreme Court challenge.

Opening Salvo

Now, on Nebraska's books is a law saying that doctors will be charged with a felony if they perform abortions after 20 weeks, since at that stage there is "substantial evidence that an unborn child has the physical structures necessary to experience pain."

"Doctors who aren't even pro-life recognize that babies at 20 weeks feel pain," Wendy Wright, president of Concerned Women for America, told CBN News. "We all know that a baby that's born early, that's premature and that they're in that little incubator they feel pain."

But pro-choice groups point to the American College of Obstetricians and Gynecologists, which says there's "no legitimate scientific information that supports the statement that a fetus experiences pain."

"The real point here is they're trying to ban abortion," charged Kathryn Kolbert, director of the Athena Center for Leadership Studies at Barnard College.

"They are trying to do that earlier in the pregnancy and these statutes are a way to force the Supreme Court to again address the abortion issue," she said.

Beyond 'Viability'

This case would surely be new because, in the past, the Supreme Court has only weighed in on the viability issue - that is, when can a fetus survive outside the womb?

The fetal pain issue is different because it's now possible the High Court could subscribe to the argument that if a fetus feels pain, that would be justification for banning abortions.

"The Supreme Court needs to take a look at the fact that abortion affects not only the woman and it's not just limitations on a doctor, but it primarily affects a baby," Wright said.

Pro-choice groups have concluded the law is unconstitutional because it bans abortions before fetal viability, which is generally considered to begin at 24 weeks, not 20 weeks like the Nebraska bill.

Pro-choicers also take comfort in the fact that the Court has held firm on using viability outside the womb as the standard to decide when abortions are no longer permitted.

'Ready for Battle'

Meanwhile, Gov. Dave Heineman, R- Neb., has put himself squarely in the middle of a probable Supreme Court controversy.

When asked if he was ready to put Nebraska at the forefront of the renewed debate on fetal pain Heinman replied, "I think it's fairly clear that we are going to be at the forefront. This represents the values and beliefs of most Nebraskans, and we're prepared to move forward."

With President Obama prepared to move forward with his next Supreme Court pick, the new Nebraska law makes this potential nomination battle even more crucial.

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CBN News
David Brody

David Brody

CBN News Chief Political Correspondent

David Brody is an Emmy Award-winning veteran news journalist who has interviewed many prominent national figures during his career of nearly 25 years. Currently, David covers the White House and interviews national newsmakers across the country.  Follow David on Twitter @TheBrodyFile and "like" him at