April 24, 2000
WASHINGTON, April 24--The cultural and legal war over abortion turns to the U.S. Supreme Court tomorrow when the justices hear arguments on whether a state can ban a particular kind of late-term abortion called "partial-birth" abortion by critics of the procedure.
The challenge to the Nebraska law is the first abortion case before the court since 1992, when the justices reaffirmed the right to abortion but allowed some state restrictions.
The question in the Nebraska case is how far states can go in restricting abortion.
"This case is at the heart of the abortion debate in the United States and will impact people around the country," said Teresa Wagner, an attorney and chief policy analyst for the Family Research Council, a Washington-based group that opposes abortion.
The 1997 Nebraska law banning late-term abortions is being challenged by Dr. LeRoy Carhart, a physician who performs abortions at a clinic in Bellevue, Neb.
Carhart, the only doctor in Nebraska who performs abortions after 16 weeks of pregnancy, called the law "an affront to medical practice, putting the state in between the physician and the patient."
Arguing that the law was unconstitutionally vague and places an undue burden on doctors and their patients, Carhart asserts that the ban on "partial-birth" abortions could be used to prohibit a common procedure used to end pregnancies after 16 weeks. Carhart contends that the politically charged label of "partial-birth abortion" actually covers two types of abortion techniques.
The best known -- and most controversial -- is called dilation and extraction (D&X), in which the fetus is pulled into the vagina, where the skull is crushed and the brain is sucked out. After the head has been crushed, the fetus is then removed. It was this type of abortion that the Nebraska legislature wanted to stop.
But Carhart said the law also could be used to bar another type of abortion known as an intact dilation and evacuation (D&E), in which the fetus is pulled into the birth canal, dismembered and removed.
Considered by doctors to be the safest late-term abortion method, D&E is the most common procedure in use today for abortions conducted between 16 weeks and 32 weeks. The state of Nebraska argues that its law does not violate abortion rights because the women who seek late-term abortions could legally undergo abortion procedures in which the fetus is left intact.
In 1998, a U.S. District judge in Omaha ruled in favor of Carhart and struck down the law. A year later, the 8th U.S. Circuit Court of Appeals in St. Louis agreed in a unanimous decision, saying that the law placed an unconstitutional "undue burden" on a woman's right to an abortion.
The appeals court said the law was "too broad" and would result in banning a number of common abortion techniques used in the second trimester.
Thirty states have enacted similar bans, but 20 of these have been struck down in federal courts as unconstitutional.
However, a federal appeals court in Chicago upheld such bans in Illinois and Wisconsin. The disparity in the federal rulings will be addressed by the Supreme Court.
The high court's decision, expected by June, is likely to produce both political and legal shock waves.
Congress has passed two federal laws banning "partial-birth" abortion, both of them vetoed by President Clinton on grounds that they lacked exceptions to protect women's health.
In addition, abortion is one area in which the two presumed presidential nominees differ distinctly.
Texas Gov. George W. Bush supports the Republican platform opposing abortion. Vice President Al Gore, an abortion-rights backer, often reminds voters that a GOP president probably will nominate three Supreme Court justices who could help overturn the 1973 Roe-vs.-Wade decision, which legalized abortion.
If the Nebraska ban is upheld, Georgetown University law Professor David Cole says, abortion-rights advocates could conclude that abortion rights could end with the overturning of Roe vs. Wade. If the ban is struck down, he says, abortion opponents could fear that they might have trouble enacting any kind of restrictions.
Janet Benshoof, president of the Center for Law and Reproductive Policy, a New York-based legal advocacy group, said a law banning the late-term abortion procedure would "scare doctors out of the profession" by threatening criminal action.
"The public has been deceived into thinking this case is about late-term abortions. It is not," she said. "At stake in this case is the degree of constitutional protection for women's right to choose."
Opponents of abortion say the late-term abortion issue has been a turning point in their movement. "While the country remains divided on abortion generally, it is not on partial-birth abortion," Wagner said. "The vast majority of Americans who learn of this practice favor banning it, whether they call themselves pro-life or pro-choice," she said.
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