July 14, 2010
Nebraska Abortion Bill: Federal Judge Issues Temporary Restraining Order
Judge Laurie Smith Camp has enjoined the enforcement of portions of the controversial abortion Nebraska bill, LB 594. In her 35 page opinion, Judge Camp provides the text of the bill, explaining it various provisions, including the extensive mental health screening and documentation.
Judge Camp explained that portions of the Bill express "the Nebraska Legislature’s concern that “the existing standard of care for preabortion screening and counseling is not always adequate to protect the health needs of women,”and “[t]hat clarifying the minimum standard of care for pre-abortion screening and
counseling in statute is a practical means of protecting the well-being of women.” and re-state the "Legislature’s earlier language to the effect that the Supreme Court of the United States over-stepped its authority when issuing its decision in Roe v.Wade, and that the Nebraska Legislature intends to protect the life of unborn children whenever possible." She reasoned:
No 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, regardless of whether such procedures are elective or non-elective, and regardless of whether such procedures pose an equal or greater threat to the physical, mental, and emotional health of the patient. From a plain reading of the language of the bill,8 and the absence of any similar statutory “protections” for the health of patients in other contexts, this Court infers that the objective underlying LB 594 is the protection of unborn human life.
Opinion at 24-25. She concluded that the Bill "places certain obstacles in the path of women seeking abortions" by
- requiring medical providers to make risk assessments and disclosures that, if the bill is
read literally, would be impossible or nearly impossible to perform,
- requiring medical providers to speculate about what conduct is mandated under the bill, if it is not to be read literally, but instead given some reasonable interpretation, and
- placing physicians who perform abortions in immediate jeopardy of crippling civil litigation, thereby placing women in immediate jeopardy of losing access to physicians who are willing to perform abortions.
Opinion at 25-26. She also found that the medical providers demonstrated a likelihood of success on the merits on the First Amendment claim that "the disclosures mandated by LB 594, if applied literally, will require medical providers to give untruthful, misleading and irrelevant information to patients." Opinion at 31.
Given the Judge's ruling, unless Nebraska can produce other evidence, it seems likely that the court will declare the statute unconstitutional.
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