NEWS STORY: Supreme Court Hears Arguments in Partial-Birth Abortion Case

c. 2000 Religion News Service (WASHINGTON) _ Lawyers representing both sides of the abortion debate squared off before the U.S. Supreme Court Tuesday (April 25), presenting oral arguments in a challenge to Nebraska’s ban on late-term abortions. The hourlong session returned justices to a legal and moral battlefield they last visited in 1992 when justices […]

c. 2000 Religion News Service

(WASHINGTON) _ Lawyers representing both sides of the abortion debate squared off before the U.S. Supreme Court Tuesday (April 25), presenting oral arguments in a challenge to Nebraska’s ban on late-term abortions.

The hourlong session returned justices to a legal and moral battlefield they last visited in 1992 when justices voted 5-4 to uphold their 1973 Roe vs. Wade decision extending constitutional protection to abortions.


At issue Tuesday was a 1997 Nebraska law that banned so-called “partial-birth abortions,” in which a doctor “partially delivers vaginally a living unborn child before killing the unborn child and completing delivery.”

This is the first “partial-birth” case the Supreme Court has heard. Thirty states have banned the procedure, but federal appeals courts have issued conflicting rulings on the constitutionality of those laws. A decision by the Supreme Court is expected by late June.

Simon Heller, the lawyer representing Leroy Carhart, the Nebraska doctor who launched the challenge to the law, told justices that the state law is “so broadly written it could prohibit most second-trimester abortions” and could lead to making all abortions “more dangerous for women.”

“Any time a state prohibits a safe abortion technique, it will prohibit for some women the safest technique,” Heller said. “Women have the right to an abortion by the safest possible means.”

He said Nebraska’s law neither preserved a woman’s health nor protected the life of the fetus, the two state interests established as the legal standard in two earlier Supreme Court rulings.

“The only purpose (of the Nebraska law) is to elevate the status of the fetus inside a woman’s body, and that would allow states to prohibit all abortions, regardless of the fetus’ viability,” Heller said. “The law is so broadly written as to ban most second-trimester abortions.”

But Nebraska Attorney General Don Stenberg disagreed, claiming the state had an interest in upholding the law.


“The state interest here is drawing a bright line between abortion and infanticide,” he said.

He acknowledged that the Nebraska abortion law as written “might be amenable to more than one construction,” but insisted that the ban only targets a procedure known in the medical community as D&X _ or intact dilation and extraction _ which involves puncturing and emptying a fetus’ skull before extraction.

Still, Justices Anthony M. Kennedy and Sandra Day O’Connor expressed concern about the law’s vague wording, questioning its scope and its failure to specifically name D&X abortions as the procedure addressed by the law.

“I’m not certain whether the statute might not prohibit the D&E (dilation and extraction) procedure,” said O’Connor, referring to an abortion method similar to the D&X.

But making the ban more specific is not the answer, Heller argued.

“Even if the statute were limited to the D&X technique, it is nevertheless unconstitutional,” he said. “The state must show that the regulation of abortion overrides a state interest in the fetus or a woman’s health interest.”

Justice Antonin Scalia, pointing out that the Nebraska law specifically applies to late-term abortions “deliberately and intentionally” performed, seemed doubtful that the law was too vague.


“In a D&E, is that what the physician tries to do `intentionally and deliberately deliver into the vagina an unborn child’ for the purpose of killing (the fetus)?,” he asked. “That has to be the objective of the physician doing it.”

He also queried whether stopping “infanticide” in Nebraska _ as Stenberg contended the Nebraska law did _ was not a sufficient state interest to uphold the law.

“Why is it not an appropriate state interest (that the state) is worried about rendering society callous to infanticide?” he asked. “Could that not be a valid state interest?”

Both Justices Stephen G. Breyer and Ruth Bader Ginsburg expressed concern that the Nebraska abortion statute did not permit exceptions in order to protect a pregnant woman’s health.

“If medical opinion is so divided and there are some doctors who feel it can be necessary for the health of the mother, what is the excuse for not having exceptions for health?” asked Breyer.

But health exceptions are not necessary, contended Stenberg, because the D&X procedure “is never necessary to save the life of a woman.”


“It’s difficult to conclude there is a health risk when the American Medical Association has found there are always alternatives,” he said.

As the proceedings progressed inside, dozens of protestors crowded on the steps of the Supreme Court, chanting and holding aloft signs with photos of aborted fetuses. Several protesters, including some from the Christian Defense Coalition, were arrested by Capitol police for, Coalition members claimed, violating an ordinance regulating the size of signs.

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Fred Erickson, who took shelter under a black plastic bag as rain drizzled on the protesters, said he traveled from central California to participate in the protests because “my conscience tells me I have to be here.”

“Abortions in Nebraska need to stop,” said Erickson, 50, a truck repairman. “I have compassion for the pregnant women, but I think there is a better way. Abortion is not the answer. I think the Supreme Court will realize that.”

President Clinton has twice vetoed a Republican-backed bill outlawing the procedure. Three weeks ago, the House passed a partial-birth ban for the third time in five years. While supporters say they have the votes to withstand another Clinton veto, it’s doubtful the Senate could also override a presidential veto.

KRE END DANCY

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