(photo: dbking)

Nebraska is implementing a radical new set of abortion laws today that could draw a Supreme Court challenge and test the durability of the 37 year-old Roe v. Wade decision. By tying the bill to a conception of fetal pain rather than viability, the law would break with standing precedent.

Republican Gov. Dave Heineman (R) signed both bills, one barring abortions at and after 20 weeks of pregnancy and the other requiring women to be screened for mental health and other problems before having abortions. Both sides of the abortion debate say the laws are firsts of their kind in the country.

A national abortion rights group already appeared to be girding for a legal challenge, calling the ban after 20 weeks “flatly unconstitutional” because it is based on the assertion that fetuses feel pain, not on the ability of a fetus to survive outside the womb.

Fetal pain is a discredited medical concept, but the Nebraska law isn’t about hewing to scientific reality, but clearly about provoking a Court fight.

As Speaker Mike Flood, who introduced LB1103, and anti-choice organizations like National Right to Life have made clear, passing LB1103 in Nebraska is part of a calculated bid. The intention of its supporters is to bring an abortion rights challenge before the United States Supreme Court, where they’re counting on Justice Kennedy to be their swing vote, based on the language he used in his brief from the Gonzalez vs. Carhart decision in 2007. Make no mistake: this is a national issue that impacts us all.

In addition, this bill really seeks to stop Dr. Leroy Carhart, one of the few remaining practitioners of late-term abortions, from working in Nebraska. But if the state legislature gets their way, they would basically set the precedent to ban abortions outside of 20 weeks entirely. The other law, on determining the mental health of the mother, is subjective and pernicious. Both are designed to chip away at abortion rights piece by piece, overturning Roe in a game of inches.

While anti-choice zealots may have the necessary votes to uphold the 20-week ban regardless of John Paul Stevens’ replacement, this is why the Court matters so much. The right has used judicial appointments in a blatantly political fashion, and unless the President is willing to see basic rights stripped away, he must act boldly.

The Republican right has a deeply disturbing covert extremist agenda for the Supreme Court – end the separation of church and state, undermine the legality of Social Security and Medicare and give individuals the right to ignore any laws they choose […]

Democrats can – and must — respond firmly and categorically to this extremist philosophy. They must respond by saying that the Democratic Party proudly upholds the traditional American view of the constitution – the view of the founding fathers of this country – George Washington, Thomas Jefferson, Benjamin Franklin, Alexander Hamilton and John Adams.

1. That the constitution guarantees religious freedom and tolerance for all Americans of every faith and creed.

2. That the constitution guarantees the right of the freely elected representatives of the people in a democracy to pass laws for the common good. The people have the right to elect new representatives who promise to repeal laws with which they disagree, but not to simply ignore and violate laws of which they do not happen to approve

3. That the constitution protects individual liberty but is not a prescription for anarchy. It provides equal rights for all under a system of laws, but does not provide veto rights for anyone who happens to disagree with a particular law.

The battle between these two views is not a battle from which Democrats should shy away. Most Americans aren’t likely to react well to the spectacle of conservatives demanding a virtual revolution against a popularly elected government, threatening to undermine the legal foundation of the social safety net many Americans depend on for their well-being and seeking to overturn constitutional doctrines that have been in place for many decades and even since the foundation of the Republic.

The Administration knows they will be criticized wildly no matter who they select. Said one official, “He could choose Jeff Sessions to be the nominee and there will still be a big old fight over it.” So with basic rights at stake, the President has absolutely no reason to choose someone to please conservatives, because even his own staff knows that is impossible. And if his selection has actually stated their opinion on reproductive choice, so be it. Those opinions will be ascribed to a blank slate anyway.

Obama’s SCOTUS pick represents his own specific attitudes about the law. He’s already said that the right cannot be satiated in any way. Whoever he chooses, we can assume that’s who he wants on the bench.