Supreme Court Agrees to Hear Late-Term Abortion Case
By LINDA GREENHOUSE, NT Times on the Web, January 15, 2000
WASHINGTON, Jan. 14 -- Adding an abortion case to its docket for the first
time in eight years, the Supreme Court agreed today to decide whether a Nebraska
law banning a procedure that the state calls partial birth abortion is
constitutional.
The justices plan to hear the case in April and decide it by early summer.
The election-year ruling could have a substantial impact on the fractious
politics of abortion, although it may not resolve questions about all the
similar, but differently worded, prohibitions that 30 states have adopted in
recent years.
The Nebraska law, which is broadly written and lacks an exception to protect
the health of pregnant women, was declared unconstitutional last September by a
federal appeals court, which also struck down similar laws in Iowa and Arkansas.
Nearly simultaneously, a different appeals court upheld laws in Wisconsin and
Illinois, creating the judicial conflict that the Supreme Court is acting
quickly to resolve.
In their order late today granting Nebraska's appeal, the justices indicated
that they were not interested in revisiting the basic question of the
constitutional status of abortion. Nebraska had asked the court to reconsider
its decisions establishing a right to abortion, but the justices granted review
only on specific questions of whether the Nebraska law is consistent with those
precedents.
Like the laws in other states, the Nebraska law applies to procedures used to
terminate pregnancies of fetuses that cannot yet live outside the womb, up to
about the 24th week of pregnancy.
The procedures in question are used to terminate second-trimester
pregnancies.
At this stage of pregnancy, the Supreme Court ruled eight years ago in
Planned Parenthood v. Casey, states may not place an "undue burden" on
a woman's access to abortion.
In striking down the Nebraska law, the United States Court of Appeals for the
Eighth Circuit, in St. Louis, said that because the Nebraska law would have the
effect of prohibiting "the most common method of second-trimester
abortion," it constituted an "undue burden" and meant that the
court had a "duty to declare the statute invalid."
In his opinion for the appeals court, Judge Richard S. Arnold said that the
term partial birth abortion, "though widely used by lawmakers and in the
popular press, has no fixed medical or legal content."
The Nebraska law, which was passed in 1997 but has been blocked ever since
from taking effect, contains this description of the abortion technique that it
prohibits: "an abortion procedure in which the person performing the
abortion partially delivers vaginally a living unborn child before killing the
unborn child and completing the delivery."
The term "partially delivers" is in turn defined as
"deliberately and intentionally delivering into the vagina a living unborn
child or a substantial portion thereof."
The appeals court said the phrase "substantial portion" was the
law's "crucial problem" because it meant that the prohibition applied
to a range of procedures used quite early in pregnancy, in which a doctor pulls
fetal parts from the uterus through the birth canal. Although Nebraska argued
that its Legislature had not intended to ban this common procedure, known as
dilation and evacuation, the appeals court said that "we cannot, however,
twist the words of the law and give them a meaning they cannot reasonably
bear."
In its Supreme Court appeal, Stenberg v. Carhart, No. 99-830, Nebraska argues
that the appeals court should have adopted a narrower reading of the law to
prohibit only a variant of a procedure known as intact dilation and extraction.
In this procedure, which is used infrequently but has become widely known
through its graphic depiction in Congressional debates on the issue, a more
fully developed fetus is brought feet first through the birth canal, leaving the
largest part, the head, inside the uterus. The skull is then collapsed and its
contents suctioned to enable it to pass through the cervix.
While this procedure is often referred to as a late-term abortion, it takes
place before fetal viability, up to about 24 weeks of pregnancy. Even under Roe
v. Wade, the court has permitted states to ban abortions after viability, with
exceptions for the pregnant woman's life and health. Moreover, most states have
long had such prohibitions, which are not at stake in this case.
Dr. Leroy Carhart, the Bellevue, Neb., physician who challenged the state
law, performs about 20 intact abortions a year, as well as many other abortions
at earlier stages of pregnancy that the appeals court found would also be
covered by the law. Doctors performing abortions generally seek to keep the
fetus as intact as possible to avoid injury to the wall of the uterus.
Dr. Carhart's lawyer, Simon Heller of the Center for Reproductive Law and
Policy in New York, said today that although he would have preferred that the
Supreme Court let the lower court's decision stand, he thought that of all the
cases on their way to the court, Nebraska's was the best for the court to have
accepted because of a strong record compiled at trial on the safety and health
reasons for the procedure.
"The campaign against partial birth abortion has simply been a campaign
of deception orchestrated to demonize abortion in the eyes of the public,"
Mr. Heller said.
James Bopp Jr., general counsel of the National Right to Life Committee, said
that even under Roe v. Wade, bans on the procedure could and should be upheld
because the court's precedents on the right to abortion did not apply to ''the
killing of living infants who are only inches away from being fully born
alive."
President Clinton has twice vetoed proposed federal laws banning the
procedure. Last October, a law passed by the Senate for the third time was two
votes short of the number needed to override the president's veto. The House of
Representatives will take up the bill this year.
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