An eventual decision by the Supreme Court on the constitutionality of the Nebraska law, expected by the end of June, would affect such bans in 30 states, and it would affect an ongoing effort in Congress to enact a national prohibition. Opponents of the bans say they are so broadly written that they are little more than a thinly disguised effort to outlaw most abortions.
The "partial-birth" procedure is "a little-used form of abortion that borders on infanticide," state Attorney General Don Stenberg said during argument Tuesday.
He met with immediate skepticism, however, in questions from Justices Ruth Bader Ginsburg, David Souter, and John Paul Stevens. "Isn't the bright line between infanticide and abortion viability [of the fetus]?" Stevens asked.
The state ban applies to all partial-birth abortions, no matter how early in a pregnancy they occur or how viable the fetus is.
Stenberg was immediately supported by Justice Antonin Scalia. "It looks more like infanticide," Scalia said from the bench, "when the child is killed outside the womb than when the child is killed inside the womb.... Isn't that what the [Nebraska] Legislature was worried about [when it enacted the ban]?"
The attorney general agreed.
The Nebraska statute defines a partial-birth abortion as "deliberately and intentionally delivering into the vagina a living fetus or substantial portion of a living fetus for the purpose of performing a procedure the person knows will kill the fetus, then killing the fetus."
The ban also includes delivering "a substantial portion" of the "unborn child" into the vagina and targets any procedure that the surgeon "knows will kill the unborn child."
Nebraska's ban was enacted in 1997 with only one dissenting vote in the Legislature.
The state ban makes an exception only in cases where the life of a mother might be at risk and provides criminal penalties for doctors performing such abortions.
Nebraska officials contend that the definition in the statute only applies to dilation and extraction (D&X) procedures, not to the much more common dilation and evacuation (D&E) procedures, and that therefore the ban is relatively narrow.
Nebraska's ban was challenged by Dr. LeRoy Carhart, a former lieutenant colonel and physician in the U.S. Air Force. Carhart practices medicine and performs abortions in Bellevue, Neb.
In a brief to the Supreme Court, lawyers for the physician said, "Dr. Carhart performs most second-trimester abortions in a sequence of steps that fits the [Nebraska] act's language precisely." The brief said one procedure, "intact D&E" -- in which a fetus is vacuumed or pulled from the uterus -- is done to "minimize perforation of the uterus or cervix," and is often the safest method of abortion after 15 weeks of pregnancy.
Breaking up the fetus inside the uterus, which presumably would be allowed under Nebraska's statute, is something "no physician sets out to do," because of the danger to the woman, the brief said.
A federal judge and a federal appeals court panel in the 8th U.S. Circuit outlawed the Nebraska ban, saying it was in violation of Supreme Court precedent. The state then asked the Supreme Court for review.
Speaking for Carhart Tuesday, New York attorney Simon Heller told the justices that the Nebraska ban violated two central themes of Supreme Court precedent: "It seeks to reverse the supremacy of a woman's health over the viability of a fetus," and it puts an "undue burden" on a woman's right to an abortion during the first two trimesters of pregnancy.
Heller argued that D&X, purportedly the target of partial-birth abortion bans, is really just a form of D&E, and that the language of the Nebraska statute would ban most of the latter procedures.
During Heller's argument, Scalia attacked the lawyer's reliance on two Supreme Court precedents -- 1973's Roe vs. Wade and 1992's Casey vs. Planned Parenthood -- that form the structure of a woman's right to an abortion.
"Neither Roe nor Casey are mentioned in the Constitution," Scalia said from the bench. The justice added that a state has an interest in discouraging "the callousness of infanticide...the horror of seeing a live human creature outside the womb dismembered."
Scalia asked Heller why the D&X procedure was so rare. Heller replied that the procedure is new, and it may become more popular if doctors believe it is better for a woman's health to perform abortions outside the womb.
"So we can look forward to this method becoming more widespread?" Scalia asked.
"We don't know," said Heller.
During Stenberg's argument, key Court swing vote Justice Sandra Day O'Connor said D&X and D&E are "both very gruesome procedures," but she questioned whether the state, under Supreme Court precedent, could effectively ban versions of D&E in the course of trying to outlaw partial-birth or D&X abortions.