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Justices skeptical of state law in partial-birth abortion case

WASHINGTON (BP)–The U.S. Supreme Court expressed skepticism a state ban on partial-birth abortion would prohibit only that grisly procedure in oral arguments before the justices April 25.

In its most significant abortion case since 1992, the high court considered whether a state could restrict a particular procedure while not limiting the right to abortion. The arguments came in the appeal of an Eighth Circuit Court of Appeals opinion striking down a Nebraska law.

Nebraska is one of 27 states that have adopted a partial-birth abortion ban patterned after federal legislation that twice has been vetoed by President Clinton following strong congressional support. The procedure prohibited by the bans reached public awareness in the early 1990s and is typically performed in the fifth or sixth month of pregnancy. As practiced by some abortion doctors, it involves the delivery of an intact baby, feet first, until only the head is left in the birth canal. The doctor pierces the base of the baby’s skull with surgical scissors, then inserts a catheter into the opening and suctions out the brain.

An Eighth Circuit panel ruled the Nebraska ban, as well as those in Arkansas and Iowa, was too broad and constituted an “undue burden” on women seeking abortions.

Some of the justices expressed concerns about the law’s breadth. For supporters of the ban, the bad news was that Associate Justice Sandra Day O’Connor was among them.

O’Connor, a justice supporters of the ban almost certainly need if they are to achieve a majority, called both the dilation and extraction (D and X or partial-birth) and dilation and evacuation (D and E) procedures “gruesome.” She expressed concern to Nebraska Attorney General Don Stenberg the law may “prohibit D and E” as well as D and X or partial-birth abortions.

Stenberg already had told O’Connor he did not hold the position the law could ban D and E abortions. When she expressed her concern about the law’s breadth, Stenberg disagreed, saying no state attorney general in about 20 cases has interpreted such a ban to prohibit D and E abortions.

A D and E abortion involves dismemberment of the unborn child rather than nearly total delivery of the baby.

Simon Heller of the Center for Reproductive Law and Policy said Leroy Carhart, the abortion doctor who challenged the Nebraska law, typically brings part of the child out of the womb when he performs the D and E procedure. The ban is so broad it could cover most second-trimester abortion procedures, Heller argued.

Stenberg countered in his rebuttal, saying the Nebraska legislature adopted an amendment suggested by the American Medical Association to Congress to clarify the ban does not apply to D and E abortions.

The issue is “whether a state may prohibit a form of abortion” that borders on infanticide, Stenberg told the justices. Nebraska has an interest in “drawing a bright line between infanticide and abortion,” he said.

Heller said, however, a woman’s health “cannot be overridden” by the interest of an unborn child.

Associate Justice Antonin Scalia challenged Heller’s assertion the language of the law could cover D and E procedures. He also wondered why it would not be appropriate for a state to be concerned about society becoming more callous by allowing partial-birth abortions. “Can that not be a valid state interest?” Scalia asked.

While Chief Justice William Rehnquist, Associate Justice Clarence Thomas and Scalia normally are strong pro-life votes, it is unclear whether any other members of the court would decide in favor of the ban. Associate Justice Anthony Kennedy and O’Connor typically are swing votes, while Associate Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer usually support abortion rights.

Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, expressed a concern about the “fast track” on which the case was brought to the high court. The federal appeals court struck down the law in September.

“That could be an indication that they are hoping to decide to strike down the Nebraska law prior to the political conventions this summer in an attempt to take this issue away from a decision by the American people,” Land said in a phone interview. “They tried that with Roe v. Wade in 1973, and it didn’t work, and it won’t work this time.

“The people of Nebraska have the right to ban this heinous, barbaric, partial-birth abortion procedure, and if the Supreme Court tries to suppress that right by striking down this statute, it will only serve to further enflame this issue and make it even more prominent as an issue in the fall campaign from the presidential race down to the contests for every congressional seat.”

The ban’s opponents — many who have called it an attack on the right to abortion — also pointed to the November elections.

If her side loses, “[I]t will mean we have to go back to the streets,” said Patricia Ireland, president of the National Organization for Women, at a rainy news conference after the arguments. “It will mean the November elections are even more important than before.”

Vice President Al Gore is an abortion rights advocate, while Republican challenger George W. Bush is generally pro-life and supportive of a ban on partial-birth abortion.

James Bopp, general counsel of the National Right to Life Committee, told reporters afterward the issue is “how far outside the womb will the right to abortion now travel.”

“Unfortunately, the other side has not met or seen a single abortion that they don’t like nor do they want any limit on abortion, and they want the abortion right recognized in Casey and in Roe v. Wade to now be extended outside the womb, into the birth canal where the killing of a child occurs in a partial-birth abortion,” Bopp said.

Most states had laws prohibiting abortion when the high court found a federal constitutional right to abortion in its 1973 Roe opinion. In 1992, the high court held in Casey v. Planned Parenthood a state could pass some restrictions, such as requiring informed consent for the mother, but the justices also affirmed Roe.

While the Eighth Circuit rejected the partial-birth abortion bans of three states, the Seventh Circuit upheld similar bans in Illinois and Wisconsin.

The Ethics & Religious Liberty Commission signed onto a friend-of-the-court brief by the U.S. Catholic Conference supporting the ban. Others signing onto the brief were the National Association of Evangelicals, Lutheran Church-Missouri Synod, Greek Orthodox Archdiocese of America, Church of Jesus Christ of Latter-day Saints and the Nebraska Catholic Conference.

Others filing briefs supportive of the prohibition included the National Right to Life Committee, American Center for Law and Justice, Family Research Council, Knights of Columbus, Agudath Israel, 18 states, 33 members of Congress and numerous physicians and medical organizations.

Opposing the ban in briefs were, among others, the American College of Obstetricians and Gynecologists, American Civil Liberties Union, National Abortion and Reproductive Rights Action League, Religious Coalition for Reproductive Choice and four states.

A decision in Stenberg v. Carhart is expected before the high court adjourns for the term, probably in late June.