Court Nixes Nebraska Abortion Law

Wednesday, June 28th 2000, 12:00 am

By: News On 6

WASHINGTON (AP) â€” A sharply divided Supreme Court on Wednesday struck down a state law banning ``partial-birth'' abortions â€” a decision sure to escalate a bitter national debate that has raged ever since the landmark Roe v. Wade ruling in 1973.

By a 5-4 vote, the justices said the Nebraska law violates women's constitutional right by imposing an ``undue burden'' on their decisions to end their pregnancies.

The ruling, the court's most important word on abortion in eight years, did not appear to immediately affect similar laws in 29 other states. But their supporters are likely to have a harder time defending them in lower courts.

Partial-birth abortion is not a medical term. Doctors call the method dilation and extraction, or D&X, because it involves partially extracting a fetus, legs first, through the birth canal, cutting the skull and draining its contents.

A more common procedure is dilation and evacuation, or D&E, in which an arm or leg of a live fetus may be pulled into the birth canal during the abortion operation.

The court said the Nebraska law, which state Attorney General Don Stenberg said is aimed only at the D&X method, could criminalize the D&E method as well.

``Using this law, some present prosecutors and future attorneys general may choose to pursue physicians who use D&E procedures, the most commonly used method for performing previability second-trimester abortions,'' Justice Stephen G. Breyer wrote for the court.

``All those who perform abortion procedures using that method must fear prosecution, conviction and imprisonment. The result is an undue burden upon a woman's right to make an abortion decision,'' Breyer said. ``We must consequently find the statute unconstitutional.''

The law made it a crime if someone performing an abortion ``partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery.''

Bob Blank, president of Metro Right to Life, an abortion opponent group in Omaha, Neb., called the ruling a disappointment. ``The Supreme Court of the United States chose not to listen to the people of the United States,'' he said.

The Nebraska law did not allow partial-birth abortions even if doctors considered that method the best way to guard a woman's health.

Joining Breyer were Justices John Paul Stevens, Sandra Day O'Connor, David H. Souter and Ruth Bader Ginsburg.

Ginsburg and Breyer joined the court after a 1992 decision in which the justices then on the court upheld the constitutional right to abortion by a 5-4 vote. Wednesday's ruling was the first on abortion for those two justices.

Chief Justice William H. Rehnquist and Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy dissented.

Kennedy was one of the co-authors of a 1992 Supreme Court decision that upheld the constitutional right to abortion. O'Connor and Souter were the other co-authors.

O'Connor, who supplied the critical fifth vote for striking down Nebraska's law, wrote a concurring opinion that said some version of a partial-birth abortion law might be constitutional.

``A ban on partial-birth abortion that only proscribed the D&X method of abortion and that included an exception to proserve the life and health of the mother would be constitutional in my view,'' she said.

The procedure at issue in the Nebraska case is used for some abortions close to the point of viability, when a fetus is able to live outside the uterus. Past abortion rulings make clear that states can take numerous steps to protect fetal life once viability occurs, generally around the sixth month of pregnancy.

When the case was argued in April, a lawyer representing a Nebraska doctor told the court that the state's law was ``so broadly written it could prohibit most second-trimester abortions.''

The debate over partial-birth abortion already has inserted itself into presidential politics. The Clinton administration supported striking down Nebraska's law, and the president twice vetoed similar federal laws enacted by Congress.

In the presidential race, Democrat Al Gore opposes bans on partial-birth abortion, but Republican George W. Bush supports them.

The Republican-controlled House voted 287-141 in April to outlaw partial-birth abortions â€” the third time in five years it backed such a ban. While the majority was wide enough to override Clinton's promised veto, the bill's supporters again appear to lack the two-thirds majority they would need to prevail in the Senate.

Nebraska's law, along with those in Arkansas and Iowa, was invalidated by a federal appeals court last year. But another federal appeals court upheld partial-birth abortion laws in Wisconsin and Illinois.

Thomas, writing for himself, Rehnquist and Scalia, suggested that the ruling will have a direct impact on the partial-birth abortion laws in 29 other states.

``Today we are told that 30 states are prohibited from banning one rarely used form of abortion that they believe to border on infanticide,'' he said. ``It is clear that the Constitution does not compel this result.''

The state's 1997 law was challenged by Dr. Leroy Carhart, only one of three doctors in Nebraska known to perform abortions. Since he filed his lawsuit, Carhart's rural home was burned down. The family dog and cat were killed, as were 17 horses trapped in a barn that also was set ablaze.

Carhart said he received an anonymous letter, postmarked the same day as the fire, justifying the action as a statement against ``the killing of babies.''

Carhart was in the ornate courtroom when Wednesday's decision was announced.