Supreme Court rejects late-term abortion ban

Thursday, June 29th 2000, 12:00 am
By: News On 6

5-4 vote seen as affirmation of Roe

WASHINGTON – A fractious Supreme Court renewed its support of the constitutional right to an abortion Wednesday, striking down Nebraska's effort to ban certain late-term procedures.

By a 5-4 vote, the high court said the Nebraska legislature worded the law so broadly that it could be applied to even the most common method of abortion.

"All those who perform abortion procedures using that method must fear prosecution, conviction and imprisonment," Justice Stephen Breyer wrote on behalf of the majority.

In his majority opinion, Justice Breyer said the court wouldn't revisit the legal principles behind Roe vs. Wade and a subsequent 1992 case; it only evaluated how those principles applied to Nebraska's late-term ban. The majority also expressed sympathy for the "virtually irreconcilable points of view" on abortion.

"We understand the controversial nature of the problem," Justice Breyer wrote.

The ruling is the latest guidepost in a battle that began in 1973, the year the Supreme Court declared the constitutional right to an abortion in Roe vs. Wade, a case that originated in Dallas.

The four dissenters condemned the ruling, saying Nebraska and about 30 other states made good-faith efforts to ban a procedure they called "partial-birth abortion."

"The Court inexplicably holds that the states cannot constitutionally prohibit a method of abortion that millions find hard to distinguish from infanticide," wrote Justice Clarence Thomas, who took the relatively unusual step of reading his dissent from the bench.

Three of the four dissenters also openly disputed another abortion ruling. This one upheld a Colorado law that prohibits protesters from approaching within eight feet of people entering an abortion clinic.

The court's decision in the Nebraska case, its biggest abortion ruling in eight years, occurred in the middle of a presidential campaign in which abortion is a major issue.

The one-vote margin came from a court that has three members who are are age 70 or more, meaning the next president could name replacements for a third or more of the justices – a point repeatedly made by abortion rights supporters.

'Razor-thin' margin

"The presidential election will also decide the future of the Supreme Court and that in turn will decide whether or not we keep a woman's right to choose or see it taken away," Democratic presidential candidate Al Gore said, citing the "razor-thin' margin of the ruling.

The vice president also pointed out that Republican rival George W. Bush has expressed admiration for two dissenters, Justices Thomas and Antonin Scalia.

Mr. Bush criticized the court, saying it negated the will of Nebraska residents.

"States should have the right to enact reasonable laws and restrictions, particularly concerning the brutal practice of partial-birth abortion," the Texas governor said. "The American people can take steps to protect children who are in the process of being born, and they should have the right."

Texas does not have a late-term abortion ban. Mr. Bush said he would push for a federal ban if elected.

President Clinton applauded the ruling, but said the narrow margin reflected an equally close division over the fate of Roe vs. Wade itself.

"I think that it's very much in the balance, depending on what appointments are made in the next four years," Mr. Clinton said. Both of his appointees to the court voted with the majority.

Mr. Clinton, who has vetoed two congressional efforts to enact a federal ban, said he did so because they did not include exceptions to protect the health of the woman, a point the Supreme Court also made in reviewing the Nebraska law.

The two attorneys in the case both noted the political context.

Simon Heller, the attorney for Nebraska Dr. Leroy Carhart, called the ruling "a good decision, but very fragile in a way."

"The anti-choice majority is gearing up to try and change the makeup of the court," Mr. Heller said. "That is now their strategy."

Some attorneys said states may try new, more restrictive bans to meet the court's complaints about the Nebraska law. But Nebraska Attorney General Don Stenberg said any late-term ban would probably be rejected by the court – at least this court.

'Follow the Constitution'

"We need appointments of Supreme Court justices who will simply follow the Constitution and not seize the opportunity to legislate their own social views," said Mr. Stenberg, the Republican nominee for a Nebraska U. S. Senate seat this November.

The decision generated a countermove by abortion opponents, particularly religious conservatives. Many backed the candidacies of presidents Ronald Reagan and George Bush in the hopes they would appoint judges to overturn Roe.

Opponents seemed on the verge of success in a 1992 case. But by a 6-3 vote the court upheld the basic holding in Roe vs. Wade, with the concurrence of three Reagan and Bush appointees: Sandra Day O'Connor, Anthony Kennedy, and David Souter.

The court also said in 1992 that some abortion restrictions could be constitutional if they did not place an "undue burden" on the woman.

Justices O'Connor and Souter said the Nebraska late-term ban imposed such a burden.

"It contains no exception for when the procedure, in appropriate medical judgment, is necessary to preserve the health of the mother," Justice O'Connor wrote in a separate opinion siding with the majority in the Nebraska case.

The majority also included Justices Breyer, John Paul Stevens and Ruth Bader Ginsburg. Justice Kennedy, a key vote in the 1992 case reaffirming Roe, voted to uphold Nebraska's ban. He said the law targeted one specific procedure, disputing the majority's finding that it could applied to all kinds of abortions.

"Through their law the people of Nebraska were forthright in confronting an issue of immense moral consequence," Justice Kennedy said.

Justice Kennedy dissented along with three other outspoken critics of the original Roe ruling: Chief Justice William Rehnquist and Justices Thomas and Scalia.

The chief justice, age 75, is considered a likely candidate for imminent retirement. Two others are Justice Stevens, age 80, and Justice O'Connor, 70.

In the Colorado case, Chief Justice Rehnquist joined the five justices who had formed the majority in the late-term abortion case. Justice Thomas and Justice Kennedy joined Justice Scalia in dissent, the latter two reading their critiques from the bench.

Six of the nine justices said the law protects "listeners from unwanted communication." The three dissenters said the law gutted free speech, strictly at the expense of abortion opponents.

In the Colorado case, Chief Justice Rehnquist joined the five justices who had formed the majority in the late-term abortion case. Justices Kennedy and Thomas joined Justice Scalia in dissent, the latter two reading their critiques from the bench.

Organizations that have campaigned against abortion condemned both rulings and renewed their call for a constitutional amendment to stop abortion.

"The court has expanded the right to kill children at every stage, including childbirth," said Judie Brown, president of the American Life League.

Gloria Feldt, president of Planned Parenthood, said future state actions and presidential appointments could make the Nebraska decision "a hollow victory."

She added: "While it looks like a victory, this is the beginning – not the end."