Abortion was such a hot-button issue in the battle over health reform that it threatened to derail the process on multiple occasions—including the final push to get the legislation through Congress.

Supporters of comprehensive reproductive health benefits stood by and watched in frustration as the Hyde Amendment’s draconian ban on federal funding for abortion was extended even to private insurance plans available through the new exchanges. Their only solace was that the restrictions in the legislation would at least temporarily tamp down the furor over “taxpayer-funded abortions.” And with the legislation mandating increased funding for family planning and sex education, the nation could instead focus on the other strategies Obama—and seemingly many Americans—support to reduce unwanted pregnancy.

Now it’s became clear that the abortion fight is far from over; anti-choice activists are far from mollified and are eager to push their agenda far beyond health care reform. Today, Nebraska’s governor signed into law legislation banning abortions that occur in that state at or after 20 weeks gestation, using a new standard that assumes fetuses feel pain after this point. Gov. Dave Heineman also signed a law requiring women who seek abortions to receive screening and counseling for vague “risk factors” both before and after the procedure. Failure to identify such a “risk factor” could result in a doctor facing a penalty of $10,000.

The Nebraska abortion ban is important because it challenges the underpinnings of Roe vs. Wade: that states can only ban abortions that occur after a fetus is viable outside the womb—at 22 to 24 weeks in most cases. It should be noted that fetal viability is not a set point decided by law, but rather it is determined by individual physicians based on their medical expertise. In Newsweek’s blog “The Gaggle,” Sarah Kliff writes;

“The Supreme Court recognized viability—the point at which the fetus can live outside the womb—as the point at which states have the right to ban abortion (with exceptions made for the woman's life and health). That was the "compelling" point at which to allow abortion bans, Justice Harry Blackmun opined, ‘because the fetus then presumably has the capability of meaningful life outside the mother's womb.’ Therefore, he continued, ‘If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.’”

Nebraska’s attempt to shift this “compelling” point from viability to the time when a fetus feels pain is so scientifically tenuous that experts believe it is unlikely to stand up in court. A JAMA review article found that “Evidence regarding the capacity for fetal pain is limited but indicates that fetal perception of pain is unlikely before the third trimester.” More specifically, the authors found that pain perception was likely not possible before 29 or 30 weeks gestation when the brain and nervous system had developed enough to process key signals. Indeed, the American College of Obstetricians and Gynecologists released a statement in response to hearings on the Nebraska law saying it knows of "no legitimate scientific information that supports the statement that a fetus experiences pain."

The Nebraska law will also face challenges for the narrow health exceptions it provides for women seeking late-term abortion. The bill states that women may have abortions after 20 weeks only to avert maternal death or to prevent serious injury to a major body function. Unlike Roe v Wade, the exceptions do not include women who are at risk of serious injury to their psychological or mental health—including the tragic cases of women who have “wanted” pregnancies but have learned that their fetuses suffer from profound abnormalities that will ultimately lead to pain and death of their infants after birth. 

But despite this shortcoming and the dearth of scientific evidence to back up the fetal pain issue, the Nebraska law needs to be taken seriously. It signals that abortion foes are more than eager to use thinly-veiled ideology to directly challenge the precedent set by Roe vs. Wade. It also highlights a trend among conservatives to champion the rights of an unborn fetus at the expense of a woman's right to autonomy.

The short-term goal of Nebraska  legislators is ultimately to prevent Dr. LeRoy Carhart, a colleague of murdered abortion provider Dr. George Tiller and one of the last doctors to provide late-term abortions, from setting up shop in their state. But in the long run, abortion foes are hoping to build on the concept of  “fetal rights” that they believe was established in the Supreme Court case Gonzales v. Carhart (yes, that same Carhart). This was the 2007 case that upheld the federal ban on one specific late-term abortion technique—the so-called partial-birth method. In writing about the case, Justice Kennedy makes a judgment that the state’s interest in protecting the life of the fetus and maintaining the sanctity of the medical profession overrules  the protections offered to women by Roe. Abortion opponents are hoping that by introducing the concept of fetal pain, the Nebraska law will force the court to further consider the emerging issues of fetal rights and provider conscience and eventually, overturn Roe v. Wade.

In the end, passage of the Nebraska abortion ban is clear evidence that President Obama’s goal to establish common ground on abortion and to “make sure that all of our health care policies are grounded in clear ethics and sound science, as well as respect for the equality of women," is still out of reach. Legislation to ban abortion at various stages—or altogether—has been proposed in some 20 states, including statutes that would define “personhood” as beginning at the moment of conception. Moreover, a myriad of state laws like the other new Nebraska statue that requires ideologically-based counseling and screening for vague “risk factors” continue to chip away at women’s access to reproductive services.

Now that health reform has passed, the ideological battle over abortion is being fought in other arenas. Obama has been granted another chance to appoint a Supreme Court justice; let’s hope he remembers how far we are from achieving consensus on this issue and that a woman’s right to choose remains very much under attack.