Initiatives to ban so-called "partial-birth abortion" continue to
make news.
In what is becoming an annual ritual, both houses of the U.S. Congress voted to enact a ban on a particular late-term abortion procedure that anti-choice groups have targeted. As has happened before, President Clinton is expected to veto this legislation, and Congress' veto-override attempt is expected to fail for lack of votes in the Senate.
In the meantime, on April 25 the U.S. Supreme Court heard oral arguments in the case of Stenberg v. Carhart, its review of Nebraska's partial-birth abortion ban. Nebraska's law, which is identical to the laws in most of the 31 states that have enacted partial-birth abortion bans, makes criminal "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." Doctors can be sentenced to up to 20 years in prison, and there is no exception for the health of the woman.
The Nebraska law was challenged by Omaha physician Dr. Leroy Carhart and was overturned last year by the U.S. Court of Appeals for the Eighth Circuit. The appeals court found that the law could also outlaw standard methods of terminating a pregnancy before fetal viability, and thus would place an unconstitutional "undue burden" on women's access to abortion.
In Supreme Court arguments, supporters of the Nebraska law charged that the intact dilation and extraction (D&X) procedure needs to be banned because it is tantamount to infanticide. A brief filed by the National Right to Life Committee said that Nebraska is not prohibiting the termination of a pregnancy but only the "intentional killing of the fetus in the process of pregnancy termination."
Arguments filed in support of overturning the law touched on a wide range of issues. One concern is the lack of an exception allowing the use of this procedure to protect the health of the woman. Another concern is that the law's definition of so-called "partial birth abortion" is so broad that it could be read as applying to abortions performed by dilation and evacuation (D&E) and other methods.
Based on the questions asked by justices during oral arguments, many Supreme Court observers have predicted that the Court will overturn the Nebraska law. Individual justices questioned the validity of treating a particular type of abortion as "infanticide," when any type of pre-viability abortion would lead to the death of the fetus. A separate Nebraska law prohibits abortions after the point when a fetus might survive on its own.
Justice Ruth Bader Ginsburg was especially critical of the state's arguments. She noted that prior court decisions recognized two state interests in regulating abortion: a woman's health and the potential life of the fetus. "Whatever this ban does, it surely can't be urged that it serves either," she said. A ban on one abortion procedure among others did not protect fetal life, she continued, "because there's always another way to do it." She concluded that the Nebraska law is "out of the bounds this court has set for legitimate pre-viability regulation."
Other justices, including Justices Sandra Day O'Connor and Stephen Breyer, focused their questioning on the lack of an exception for circumstances when the doctor judges that the D&X procedure is necessary to protect the woman's health. Only Justice Antonin Scalia, a consistent opponent of abortion, used the oral session to speak in support of partial-birth abortion bans.
If the Court does overturn the Nebraska law, the impact of the ruling will depend on whether it is narrowly limited to the vagueness of the Nebraska law or broadly declares that a state cannot make it a crime to use a particular method to terminate a pregnancy. Writing in the New York Times on April 26, reporter Linda Greenhouse noted that a narrow ruling "would most likely have the effect of inviting states to amend their laws and try again to survive the inevitable legal challenges."
The Supreme Court is expected to announce its decision in June.