Court Hears Arguments on Partial-Birth Abortion

July 7, 2008 - 8:02 PM

Supreme Court ( - For the first time in eight years, the Supreme Court Tuesday heard arguments in a case dealing with abortion, this time with the controversial practice of partial-birth abortion.

At issue in Stenberg v. Carhart is a Nebraska state law that band partial-birth abortion, or "D&X" abortions (intact dilation and extraction). In the procedure, the fetus is delivered from the womb into the vagina and dismembered there.

The law challenged by Leroy Carhart, a Nebraska abortionist who performs D&X abortions. The Eighth Circuit Court struck down the law on the grounds that the description of the procedure might ban other abortion methods, including "D&E" abortions (dilation and extraction) and as such represented an "undue burden" on the right to abortion, prohibited by the 1992 case of Planned Parenthood v. Casey.

Arguing on behalf of the law was Nebraska Attorney General Donald Stenberg, who said that the "issue is whether the state can prohibit a little-used abortion procedure that borders on infanticide."

Stenberg added that the state's interest was in "drawing a bright line between abortion and infanticide."

At the heart of Stenberg's case was his assertion that in Casey, the Court recognized that other state interests could be weighed in regulating abortion besides the health of the mother and the potential life of the fetus, the two principal interests recognized in Casey.

"[Carhart] implicitly asks the Court to place no burden whatsoever" on the right to abortion, Stenberg asserted.

Justice David Souter and Justice Ruth Bader Ginsburg pressed Stenberg on the question of whether the state's law could cover D&E abortions. Ginsburg especially was concerned as to why the law did not simply prohibit D&X abortions, rather than describing specific procedures that were prohibited.

Stenberg asserted that the law was written narrowly to cover only D&X abortions, according to the guidelines of the American Medical Association and the American College of Gynecologists. He also said that "the weight of the medical evidence" demonstrated that there were only extremely infrequent cases in which D& X was preferable to other forms of abortion such as D&E.

Both AMA and ACOG, which oppose legal restrictions on abortion, conclude that in almost all cases D&E abortions are safer than D&X.

Simon Heller, a New York abortion rights attorney, argued that the law was "so broadly written that it could ban most second trimester abortions," asserting that there was little difference between a D&X and a D&E abortion.

Heller said that the Nebraska statute would force abortionists to shift "the location of an abortion into the uterus at the expense of the health of the mother," who would be at risk for uterine perforation or infection, thereby violating both Roe and Casey.

Heller said that the Nebraska law would "seek to elevate the status of the fetus dependent on its position within the woman's body."

Justice Antonin Scalia pressed Heller closely on whether D&E and D& X were "distinctive procedures."

Heller said that the law was deliberately written in a broad manner, so as to "prohibit not only D&X but also other forms of abortion."

Scalia asked Heller whether there was a legitimate state interest in "preventing the coarsening of matters through witnessing the destruction of a live human being outside the womb."

Heller responded that there was a "right to have an abortion by the safest possible means. . . . Anytime a procedure is banned, the Court is banning the safest possible procedure possible for some woman." He added that it "undermines the integrity of the medical profession to take away the best procedure available to a patient and her doctor."

Scalia again asked whether "society has an interest in preventing a callousness to infanticide." Heller responded, "To say that this procedure is horrific - any form of abortion could resemble infanticide by that standard."

Heller also attacked the law on the grounds that it did not include an exception for the health of the mother. Chief Justice William Rehnquist questioned Heller as to whether the health exception was questionable on the grounds that "there will be doctors who will say that there is always a health exception."

Heller said that there was "no evidence that the statute has ever been misapplied."

Scalia asked Heller whether "if the slightest risk is involved in a ban of a certain procedure, does that mean that the Court cannot impose any limits after viability?"

Justice Stephen Breyer responded to Scalia by saying, "Once we have identified that woman to whom there is a risk, then the risk is no longer insubstantial to her."