- The Washington Times - Monday, April 24, 2000

The legal assertion that a person can be "partially born" thus no longer a fetus subject to legal abortion will be argued tomorrow when the Supreme Court takes up an issue that has inflamed emotions on all sides of the abortion wars.

Despite battles over partial-birth abortion bans by the legislatures of 30 states, and the twice-vetoed acts of Congress, the phrase "partially born" is new to the high court, which has been asked by Nebraska to decide that partial-birth abortions occur so late in pregnancy that a child is being murdered instead of a fetus being aborted.

"If moral stances such as those asserted by the state could serve as legitimate bases for an abortion restriction, they would justify complete abortion bans," said New York lawyer Simon Heller of the Center for Reproductive Law & Policy, who said Nebraska officials contend they could justify banning "a broader range of abortions."

He urged the Supreme Court to disregard Nebraska's stated goals of "concern for the life of the unborn and more specifically for the partially-born" and "preventing cruelty to partially born children."

"[They are] simply moral stances that the state cannot enforce at the expense of women's constitutional rights," said Mr. Heller, who represents Dr. LeRoy H. Carhart of Bellevue, Neb., who says the law's vagueness threatens his prerogative to perform other types of abortions as well.

As the high court prepared to deal for the first time in eight years directly with abortion, not simply protester rights, more than a hundred pro-life organizations urged it to block what they call the "slippery slope" to murdering newborns.

Two other important cases, both involving First Amendment rights of association, also will be argued this week. Today, the California Democratic Party seeks to end the so-called "blanket primary" imposed in 1996 by a voter initiative allowing any registered voter, regardless of political party, to vote for any candidate in any party's nominating process. Wednesday, the Boy Scouts of America will try to overturn a New Jersey law requiring that it allow homosexuals to be Scoutmasters.

Pro-choice advocates, backed by the Clinton administration, argue that it is their cause that faces a slippery slope that would eventually outlaw other abortion methods early in pregnancy.

"Can it be that under our laws a matter of inches separates a fundamental constitutional right from a capital crime? Of course not," said Pat A. Cipollone, supreme advocate of the Knights of Columbus, a Roman Catholic organization that filed a brief.

"The attempt to characterize as 'infanticide' an abortion being performed inside a woman's body involving a fetus before viability is flatly incompatible with the right to terminate pregnancy before viability that this court so recently reaffirmed," said New York Assistant Attorney General Jennifer K. Brown, who is counsel of record for New York, Maine, Oregon and Vermont in support of Dr. Carhart.

"Partial-birth abortion breaches the fire wall between abortion and infanticide," said Clarke Forsythe, president of Americans United for Life which filed a contrary friend of the court brief for Louisiana and Mississippi.

"To expand the concept of viability to the process of birth would transform the right to terminate pregnancy into a new constitutional right to kill a child even after the pregnancy is terminated," his brief for Louisiana and Mississippi argued.

"The liberty interest of pregnant women does not stop at the cervix," countered Sen. Barbara Boxer, California Democrat, using a term that invokes a person's constitutional rights. Sen. Boxer joined a pro-choice brief in alliance with 79 other members of Congress.

Defenders of the Nebraska law say it does not violate the 1973 Roe vs. Wade ruling or the new constitutional test the court laid down in the 1992 Planned Parenthood vs. Casey decision, barring actions that unduly burden access to abortion.

"[This law] does not create an undue burden … and may also be upheld under a balancing test applicable to partially born children since Roe and Casey dealt only with the 'unborn,' " said the main brief from state Attorney General Donald Stenberg.

"The effect of Nebraska's statute is to ban one unnecessary and rare procedure," he said.

"Roe, this argument goes, is about the 'unborn,' whereas this legislation is about the 'partially born,' " Sen. Boxer retorted, charging that Mr. Stenberg concluded erroneously that the Supreme Court would allow "different results for fetuses which are 'unborn' and those which are 'partially born.' "

Despite using the word "unborn" in its law, Nebraska has maintained since 1997 that a fetus is partially born when a substantial portion of its body is moved from the womb, and that what follows is not abortion but "medically unnecessary and looks disturbingly close to infanticide."

Opponents scoff that an arm or a leg also are "substantial portions" that may be removed from the uterus using other abortion methods that in no way equate with birth, and they asked the court to dismiss that line of reasoning. Many of the 34 briefs detailed clinical particulars of abortion methods, including suction curettage, which the Justice Department said is used when the living fetus is so small it "often involves the removal of the fetus intact, and before fetal demise, into the vagina."

Nebraska's law similar to those in 29 other states and the federal bill twice vetoed by President Clinton defines partial-birth abortion as intentionally removing a substantial portion of "a living unborn child" feet first from the uterus into the vaginal tract, then killing it so the head may be crushed enough to let it pass through the cervix and allow removal from the mother's body.

From the opening days of the challenge to its law, Nebraska officials argued that "the Supreme Court has never recognized a constitutional right to kill a partially born human being."

"We reject this argument because there is no precedent for it," U.S. District Judge Richard G. Kopf of Lincoln, Neb., wrote on Aug. 14, 1997, when he declared the state law unconstitutional.

Pro-choice forces, and the 8th U.S. Circuit Court of Appeals, challenged even the name of state laws banning late-term "partial-birth abortion" and charged they are intended to threaten abortion practices from the very earliest moments.

The 7th Circuit ruled Illinois' similar law constitutional, but its enforcement was blocked by an emergency order from Justice John Paul Stevens, apparently pending a decision in Stenberg vs. Carhart.

The 7th Circuit decided that banning partial-birth abortion does not unduly burden a woman's rights because, according to the American Medical Association (AMA), there is no situation in which the procedure doctors call "intact dilation and extraction" is the only appropriate way to induce abortion.

Even if the ban were confined to the one late-term procedure, the Justice Department argued in a written brief, it fails the "undue burden" test because it doesn't provide an exception to preserve a pregnant woman's health.

The brief by Solicitor General Seth P. Waxman acknowledged the AMA assurance that other abortion methods are available, but said that "for at least some women, those other procedures would jeopardize their health."

Because Congress may enact a third bill, Mr. Waxman asked 10 minutes to argue the administration's viewpoint during the hearing. The justices refused a request that is normally routinely approved, the first turndown in 27 requests this term and only the seventh in 10 years.

"Partial-birth abortion is not a generally accepted medical term nor a term of art with common-law roots," argued the government brief.

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