The Associated Press posted an article on June 27 speculating that pro-aborts may not challenge NE’s fetal pain law. (Read background here.) This would be interesting, a sign of weakness, although if I were a betting woman I’d say the other side will decide it must sue. But here is the other side of the argument, per the AP:
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… [E]xperts say attempts by abortion-rights groups to block [the fetal pain law]… from going on the books could backfire.
A ban on abortions starting at 20 weeks – set to go into effect this fall – is based on assertions from some doctors that fetuses feel pain by that stage of development. But it might be allowed to stand over fears that a losing challenge to the law would change the legal landscape for abortion, say lawyers on both sides of the debate….

If foes challenge the law and lose, the court could redefine the measure for abortion restrictions, throwing out viability – when the fetus could survive outside the womb – in favor of the point when a fetus can feel pain. And if future medical advances were to show a fetus can feel pain at an earlier stage, abortions could be restricted earlier.
“It’s a balancing act that anybody who wants to challenge the laws is going to have to assess, whether the strategic risks of bringing a lawsuit outweigh the likelihood of a victory,” said Caitlin Borgmann, a law professor at The City University of NY.
A challenge “could be seen by some people as too risky,” said Borgmann, who testified against the ban during a legislative hearing in February.
The ban is scheduled to take effect in mid-October….
Borgmann said it’s unlikely an abortion provider that does not perform late-term procedures, in the 2nd trimester – such as Planned Parenthood – would challenge the ban. That type of provider may not have standing in court to fight it and may be more apt to go after the screening law for being “unconstitutionally vague,” she said….
But supporters of the NE law say the U.S. Supreme Court’s ruling on so-called partial-birth abortion, in which the court for the first time upheld a ban on a specific type of procedure, opened the door to other challenges.
They say the ruling acknowledged states have an interest in preserving fetal life. And they say the court discarded the viability requirement because the so-called partial-birth method could have been used to abort fetuses before they could survive outside the womb.
“The court, in my view, can’t uphold this (NE ban) without changing the way abortions are restricted,” Borgmann said.
Dr. Leroy Carhart, whose Bellevue clinic offers late-term abortions, is considered to be the most likely challenger of the ban. He’s challenged other abortion laws before the U.S. Supreme Court, and his backer, the NY-based Center for Reproductive Rights, hinted in an April letter to Gov. Dave Heineman that it would be involved in a challenge.
“This bill is clearly unconstitutional and is the most extreme abortion law passed in this country in recent memory,” the letter states.
Center spokeswoman Dionne Scott said last week no decision had been made about a challenge.

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