Justices question efforts to ban 'partial-birth' abortions

Wednesday, April 26th 2000, 12:00 am

By: News On 6

WASHINGTON - As demonstrators on both sides of the abortion divide shouted at each other during a steady rain, the Supreme Court on Tuesday questioned efforts to ban what critics call "partial-birth" abortions.

One lawyer told the court that a Nebraska law targets only a little-used abortion procedure, but another said it also is designed to apply to a much more prevalent method - a position one justice seemed to support.

"I'm not certain the statute will not prohibit the [other] procedure as well," said Justice Sandra Day O'Connor, whose refusal to overturn Roe vs Wade in a 1992 case helped reaffirm the constitutional right to an abortion.

The Supreme Court will decide this case by early July, four months before a presidential election in which abortion is expected to be a major issue.

The two sides also argued about how the Nebraska case might affect Roe vs. Wade, the 1973 decision that produced passions still evident Tuesday on the slippery marble steps of the Supreme Court.

After the arguments, police arrested protesters who refused to remove signs with large pictures of aborted fetuses. As rain pelted down, a shouting match erupted between a man with a "Stop Abortion Now" sign and a woman with a "Keep Abortion Legal" sign.

Inside the courtroom, lawyers and justices discussed the clinical differences between two types of abortions.

Nebraska Attorney General Donald B. Stenberg said the law applied only to the late-term abortions known as "D & X" - intact dilation and extraction. He called it "a little-used form of abortion that borders on infanticide" because the fetus is destroyed outside the uterus.

"It's drawing a bright line between infanticide and abortion," Mr. Stenberg said.

Simon Heller, an attorney for a Nebraska doctor, however, said the banned procedure is a variation of "D & E" - dilation and extraction - by far the most common form of abortion in the second trimester. He said fetuses are often outside the uterus during these abortions, which could therefore be found illegal under the wording of the Nebraska law.

"It would authorize states to prohibit all abortions," Mr. Heller said.

An appeals court struck down the Nebraska law, setting up the Supreme Court challenge.

The decision could affect similar bans in about 30 states. President Clinton has vetoed two attempts by the Republican Congress to enact a federal ban.

Vice President Al Gore, the prospective Democratic nominee for president, backed the president. Texas Gov. George W. Bush, the Republican candidate, supports banning the late-term procedure.

Texas does not have a ban, but it does have a "parturition statute" that forbids the killing of a child during birth if the child could otherwise have been born alive.

Late-term abortions are only the latest point of dispute in the battle over Roe vs. Wade. A divided court said the decision to have an abortion in most cases is protected by privacy rights embedded in the Constitution.

Critics, including conservative members of the Supreme Court, mounted an almost immediate effort to reverse Roe. They seemed on the verge of success in 1992, but failed because of three Republican appointees: Justices O'Connor, Anthony Kennedy and David Souter.

They wrote a concurring opinion that upheld the basic findings of Roe, noting that a generation of women had grown up with those rights.

But the three justices also said states could adopt certain restrictions, such as 24-hour waiting periods and parental notices. The test is whether the restrictions place an "undue burden" on women.

During the arguments over the late-term ban, these three key justices all questioned whether Nebraska met that test.

So did Justice Ruth Bader Ginsburg, who wondered why Nebraska lawmakers didn't specifically ban the D & X procedure and exclude the more common D & E method.

"They could have reduced all questions of ambiguity here," Justice Ginsburg said.

Justice Antonin Scalia, an outspoken critic of Roe, said states should have the right to address "the horror of seeing a living human creature outside the womb being dismembered."

Mr. Heller, the doctor's attorney, said the Nebraska ban does not provide a general health exception, even though doctors say the late-term procedure is sometimes a medical necessity.

Mr. Stenberg, the state attorney general, said the ban does not place an undue burden on women because other abortion procedures remain available.

Before the arguments, attorneys involved in the case disputed whether Supreme Court support of the ban would affect the basic right to an abortion.

James Bopp Jr., who filed a brief on behalf of the National Right To Life Committee, said this case should have nothing to do with Roe - unless the court strikes down the ban.

"That means that the right to abortion is even more extreme than anyone contemplated," Mr. Bopp said.

Mr. Heller, however, said that in order to uphold the Nebraska law, the court would have to rewrite its rules: "It could mean the beginning of the end of abortion as a constitutional right."

The two sides do agree that the case will be closely decided, probably on a 6-3 or 5-4 vote.

The decision may also play a role in the presidential race. Many believe the next president could fill as many as three Supreme Court vacancies. Three of the justices are 70 or older.

Said Mr. Heller: "If we win 5-4 or 6-3, it highlights that just a small shift in the court would have tremendous consequences for women in the United States."