The Supreme Court examined abortion for the first time in eight years yesterday with Justice Antonin Scalia dominating questioning on why a state should not ban “destruction of a live human creature outside the womb.”
“Why can’t a state have an interest in not rendering a society callous to infanticide … and to the horror of seeing a live human creature outside the womb dismembered?” the court’s most outspoken abortion opponent demanded.
Justice Sandra Day O’Connor, certain to be a key voter on the divisive issue, used “gruesome” to describe partial-birth abortion, as well as its alternative, dilation and evacuation (D&E) in which a fetus is dismembered within the uterus and the parts removed with surgical tools.
“They’re both rather gruesome procedures, yet one may be very similar to the other,” said Justice O’Connor, whom a leader of the round-the-clock protest vigil outside the court called “the pivotal conscience” on abortion.
If they are deemed similar, that could mean Nebraska’s partial-birth abortion ban also banned the D&E despite state insistence that is not intended. That could be fatal to the law’s chance of being upheld because it would pose an “undue burden” on access under Justice O’Connor’s own 1992 decision in Planned Parenthood vs. Casey.
“I’m not certain whether the statute may not prohibit D&E as well,” Justice O’Connor told Nebraska Attorney General Don Stenberg, who was defending his state law, and Simon Heller of the Center for Reproductive Law & Policy representing Dr. LeRoy Carhart of Bellevue, Neb.
That 1992 Casey decision which she wrote jointly with Justices Anthony M. Kennedy and David H. Souter called it irrelevant whether Roe vs. Wade was correct but upheld it under the tradition of stare decisis respecting decisions of the high court.
“[Partial-birth abortion] is a practice that is not used even by most abortionists in the United States,” Mr. Stenberg said, charging that pro-choice groups that challenged the law seek a law that puts no burden on access to abortion, wiping out the “no undue burden” that allows 24-hour waiting periods, notification of one parent or other preliminary steps.
“The state interest here is drawing a bright line between abortion and infanticide,” Mr. Stenberg said.
“The bright line between infanticide and abortion is viability,” said Justice John Paul Stevens. Mr. Heller agreed, saying homicide laws protect a fetus once it is born.
“What this case is about is shifting the location of the abortion procedure into the uterus at the expense of a woman’s health,” Mr. Heller argued.
He said the objective in all abortions is to kill “living fetal tissue.”
He argued the Nebraska law puts more importance on the fetus than on its mother while it still is not out of her body.
“It seeks to reverse the supremacy of a woman’s health over fetal rights,” Mr. Heller argued, charging that Nebraska’s law, and similar statutes in 30 other states, is intended to curb all abortions.
“You say it borders on infanticide. Doesn’t this case only cover previability?” Justice Ruth Bader Ginsburg asked Mr. Stenberg, who maintained the case actually involves children who leave the uterus alive, only to be killed.
Chief Justice William H. Rehnquist encouraged Mr. Stenberg about how Nebraska’s law will be analyzed, saying that if there were doubt on constitutional issues in construing its meaning, “We’ll avoid the constitutional doubt.”
The chief justice, who opposed Roe vs. Wade and is the only justice left from that 1973 court, also dissented to the 1992 Casey ruling. Justice Scalia and Justice Clarence Thomas are the other dissenters left from that decision.
Justice Stephen G. Breyer’s views are unknown, and he has a mixed record on abortion-related issues. As a federal appeals judge, he voted to let stand a law requiring minors to have both parents’ permission for an abortion, a concept the high court struck down. But he voted to overturn the federal “gag rule” barring family planning clinics from advising patients about abortion.
Justices Stevens and Ginsburg are considered certain to vote against Nebraska’s law, and comments yesterday support that view.