- The Washington Times - Thursday, June 29, 2000

The Supreme Court yesterday declared unconstitutional Nebraska's ban on partial-birth abortion and upheld sweeping Colorado restrictions on protests at abortion clinics.
The high court struck down the ban on partial-birth abortion by a vote of 5-4 and upheld the restrictions on abortion-clinic protests by a margin of 6-3, with Chief Justice William H. Rehnquist joining the majority for that case.
On an extraordinary final day of the term, the court also upheld the right of the Boy Scouts of America to bar homosexuals as scoutmasters and, in a case suggesting implications for school vouchers, upheld the constitutionality of the state lending computers, software and books to religious schools.
So contentious were arguments among the justices that the partial-birth-abortion case produced seven separate opinions. Three dissenters spoke from the bench with rare ferocity.
Even mild-mannered Anthony M. Kennedy was red-faced and ground his teeth in obvious frustration as he berated the outcome of the first abortion-rights case in eight years.
The prospect that abortionists such as Dr. LeRoy Carhart, the Nebraska physician who challenged the state's law, might fear arrest and prison creates "an undue burden upon a woman's right to make an abortion decision," Justice Stephen G. Breyer wrote in the majority opinion. He was joined by Justices Sandra Day O'Connor, John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.
All four dissenters Chief Justice Rehnquist, Justices Kennedy, Antonin Scalia and Clarence Thomas wrote separate opinions. Justices Rehnquist and Scalia joined the main dissent, written by Justice Thomas.
Justice O'Connor, who provided the swing vote for the 5-4 majority, suggested that the ruling on partial-birth abortions was not final. In a remarkable aside, she offered her advice on how to tailor a ban on the gruesome procedure in a way that would win her vote.
Pro-life spokesmen said her demands would gut any law that contained them.
Yesterday's decision could sink comparable laws in up to 30 states, including Virginia.
The court's ruling drew immediate reaction from the major party presidential candidates, who disagree sharply on partial-birth abortion. One of them is likely to make appointments that could affect future Supreme Court decisions, as Vice President Al Gore pointed out.
"This is now clearly an important issue in this presidential campaign," said Mr. Gore, who opposes abortion restrictions. The presumptive Democratic presidential nominee called the margin "razor thin" and noted the potential for vacancies after the election.
Texas Gov. George Bush, the presumptive Republican nominee, pledged instead to work for a law the court would tolerate.
"I hope and expect that we can come up with a law that meets constitutional muster, and, unlike Al Gore, I pledge to fight for a ban on partial-birth abortion," Mr. Bush said.
Justice Breyer wrote that the Nebraska law, which court papers say is virtually identical to those in 29 other states, was not specific enough and could outlaw other kinds of abortion procedures.
He insisted that under the 1992 Casey vs. Planned Parenthood decision no abortion law could lack an exception to protect a woman's health, as well as her life.
"This court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose," he said.
Justice O'Connor wrote a separate opinion saying she would find constitutional a law that barred only the partial-birth, or D&X;, method and included an exception to preserve the life and health of the mother.
Clarke Forsythe of Americans United for Life called her words "an illusion, a national hoax."
In open court, Justice Scalia assailed both decisions and said some partial-birth abortions involve killing "a live and kicking child."
Justice Breyer took a different, more understated tone.
"We understand the controversial nature of the problem," Justice Breyer said from the bench, seeking to define diametrically opposed positions and explaining the difficulty of governing "virtually irreconcilable points of view."
"Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child. They recoil at the thought of a law that would permit it," he said.
"Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering."
In the Colorado protest case, the chief justice joined the majority to say a state may require demonstrators within 100 feet of a building that contains an abortion clinic to stay more than 8 feet from anyone entering or leaving the building, or someone simply passing by, and forbid an approach to speak or to offer a handbill.
"The First Amendment does not give the government this power," the usually mild-mannered Justice Kennedy said angrily, after the abortion-rights supporter surprised many court-watchers by voting against both judgments.
Even before the court recessed for the summer, the two decisions drew intense, if predictable, reaction from interest groups.
But nowhere were they denounced with stronger invective than from the bench in successive monologues by Justices Thomas, Scalia and Kennedy while Chief Justice Rehnquist remained silent on that matter.
Justice Thomas began by explicitly describing the abortion procedure at issue, saying it offends any civilized society and most Americans, including many who support abortion rights.
"The physician literally sucks the fetus' brain from the skull," he said of what he called "a method of abortion that millions find hard to distinguish from infanticide and that the court hesitates even to describe."
Justice Scalia said the court knows that demanding a so-called health exception "is to give live-birth abortion free rein."
"The method of killing a human child one cannot even accurately say an entirely unborn human child proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion," Justice Scalia said.
The crowded courtroom was tensely still throughout more than an hour of commentary from the bench.
Seated front and center was an admittedly disappointed Rep. Charles T. Canady, Florida Republican, a key proponent in Congress of banning partial-birth abortion. He has twice shepherded bills that President Clinton vetoed on grounds they lacked the health exception.
Mr. Canady said in an interview later that he didn't realize he was seated within arm's length of Dr. Carhart, an outspoken adherent and defender of the procedure.
"The court is under the domination of a very extreme pro-abortion majority. We saw that also in approving the Colorado statute designed to curb abortion protest," said Mr. Canady, who pledged to continue attempts to pass another bill outlawing the procedure.
"We're not going to drop our efforts. I don't think this forecloses all opportunities for us to legislate, although they've shown hostility in this area," he said.
That view was seconded by Rep. J.C. Watts Jr., Oklahoma Republican.
"A nation that condones stabbing a baby in the head with scissors, sucking the child's brains out, then delivering the innocent victim is one that is in serious trouble," Mr. Watts said.
"With all the talk of a breakdown in our culture, the last thing that the federal government should be promoting is legal infanticide," he said.
Virginia's ban on partial-birth abortion, which the U.S. 4th Circuit Court of Appeals allowed to go into effect, faces a new challenge as early as today. Its supporters predicted the Supreme Court decision dooms the law.
Efforts to pass a similar bill in Maryland have failed repeatedly. The District of Columbia has seen no serious effort to enact such a ban.
State laws against abortion were set aside by the 1973 Roe vs. Wade decision, based on what the court said was a constitutional right to privacy in matters of one's own body. The abortion right was last upheld in 1992 by a 6-3 vote, with Justice Kennedy voting yes.

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