Thursday, July 15, 2010

Nebraska's new abortion bill is stillborn

Well, that didn’t take long.

On Wednesday, Federal District Court Judge Laurie Smith-Camp granted a temporary injunction preventing a Nebraska abortion bill from taking effect. In granting the injunction requested by Planned Parenthood, Judge Smith-Camp found that Planned Parenthood would likely be successful in declaring enforcement of the new law prohibited by the Constitution, and therefore granted a temporary injunction blocking Nebraska officials from putting the law into effect.

So, what is the law that got blocked? The fundamental basis of the law is that an abortion provider would be required by law to go through a number of detailed procedures which the state claimed were to ensure that the woman obtaining the abortion was doing so freely and voluntarily, without any threat or duress and with a full understanding of the potential negative impacts of the procedure.

Sounds pretty innocuous, right? The statute is merely requiring informed consent before a medical procedure, just like any other medical procedure, right?

Well, not exactly. LB 594, the bill in question, has twelve paragraphs of requirements and regulations which abortion providers would be mandated to review with women seeking abortions, including determining if the procedure was being done under duress, whether there were risk factors in the procedure, and a “material” discussion of any risk factors that might be present. The physician would also have to certify in writing that the risk of continuing the pregnancy is greater than the risk of the abortion procedure, if there was anything other than a “negligible” risk involved.

Whew. I don’t recall getting a grilling like that when I got my wisdom teeth out, or when my wife had her gall bladder removed. The requirements of LB 594 are informed consent on steroids.

Or, perhaps they’re not really about informed consent at all. Judge Smith-Camp described the requirements as “requiring medical providers to make risk assessments and disclosures that, if the bill is read literally, would be impossible or nearly impossible to perform.” Is it possible that the Legislature, rather than being concerned about informed consent, was trying to just stop abortions altogether through a back-door technique?

Judge Smith-Camp had to be suspicious of that when she observed that “[n]o such legislative concern for the health of women, or of men, has given rise to any remotely similar informed-consent statutes applicable to other medical procedures.” The Legislature didn’t do itself any favors in this regard when they outlined the purposes of LB 594, which included in part stating that the Legislature disagreed with the logic behind Roe v. Wade and would do everything possible to protect the life of an unborn child. Putting those two things together was a big reason why Judge Smith-Camp found that Planned Parenthood would be “likely to succeed” in declaring LB 594 unconstitutional and entering the temporary injunction.

This isn’t new ground for pro-life legislation. Roe has been law in the United States since 1973, and the basic premise for Roe is pretty well accepted by the majority of Americans. For some time, the pro-life strategy has been one of incremental reduction. They have been unsuccessful at the big goal – making abortions illegal – so they have been forced to work around the margins of abortion, trying to at least make some of them harder to get or limiting access to the procedure.

This incremental reduction strategy has achieved a number of successes for the pro-life movement. It appears that LB 594 was another salvo in the incremental reduction arsenal. Unfortunately for the pro-life community, it appears that they over-reached in their attempt and ran afoul of the constitution.

One final observation about LB 594 that I found interesting. One provision of the bill authorized lawsuits against physicians who did not provide women with the byzantine notices required by LB 594. Those lawsuits would expose physicians to significant financial liability – and the law would allow damages against the physicians to be presumed unless the notification requirements (the ones Judge Smith-Camp called “impossible or nearly impossible to perform”) were satisfied.

The lawsuit angle was one of the reasons Judge Smith-Camp granted the temporary injunction, and she used some pretty strong language to demonstrate her concern that LB 594 was a Trojan horse in an attempt to outlaw abortions. Here’s what she wrote about the lawsuit provision:

“LB 594 effectively cloaks such plaintiffs as private attorneys general … with the apparent object of turning them into quasiprosecutors, dedicated to eliminating the activity the Legislature has found to be objectionable.”


Using lawsuits to help enforce conservative-supported legislation isn’t new. Remember Arizona’s new immigration law, requiring police to stop and ask people about their immigration status? There is a provision in that law that allowed private citizens to sue police departments if they don’t think they were being vigorous enough in enforcing the law. Sound at all familiar to the lawsuit language in LB 594?

It appears that conservatives have learned a new trick when passing laws designed to enforce their particular brand of social policy – authorize private lawsuits against individuals who might not be fully and lustily complying with the policy. The intent of the lawsuit provisions can only be to intimidate service providers who have to carry the conservative policies out (police in Arizona, doctors in Nebraska) to err on the side of the conservative social policy or risk a big lawsuit.

But, wait, you say. Isn’t part of the conservative mantra tort reform? Isn’t part of the conservative ethos that slimy trial lawyers are dragging the economy down with frivolous lawsuits, so we need to change the tort system to loser-pays or put a damage cap to make sure that trial lawyers and rogue juries don’t devastate American businesses and ruin the economy?

So, here’s my understanding of the conservative position on the tort system. Using civil courts to compensate people injured by businesses is a terrible idea that needs to be severely limited. Using civil courts as “quasiprosecutors” to enforce conservative social policy is a great idea that needs to be expanded.

Sounds a little like their position on the Department of Education – abolish the Department of Education altogether, except for the part where we prevent schools from teaching sex ed or distributing condoms.

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