- The Washington Times - Friday, June 30, 2000

The Supreme Court Thursday began the task of dismantling partial-birth-abortion bans in states with laws comparable to the Nebraska measure it declared unconstitutional on Wednesday.

In an order made public after they departed for summer vacation, justices overturned appeals court rulings upholding Illinois and Wisconsin laws that made it a crime to perform partial-birth abortions and rejected appeals to reinstate Iowa's law.

The court sent the Illinois and Wisconsin cases back to the U.S. 7th Circuit Court of Appeals and ordered them disposed of "in light of Stenberg vs. Carhart," the name of Wednesday's 5-4 ruling.

The 7th Circuit earlier decided that both bans could be "enforced in a constitutional manner." Justice John Paul Stevens ordered on Nov. 30, however, that they not go into effect until the Supreme Court considered them.

In a separate order, the court declined to accept Iowa's appeal against a Planned Parenthood victory in getting the 8th Circuit to strike down Iowa's partial-birth-abortion law. The law was nullified on grounds that "other abortion procedures would be prohibited as well."

The Illinois law pronounced it a felony to perform a partial-birth abortion, as did Wisconsin, which prescribed a life sentence for doctors who do the procedure except to save the mother's life. The court said the fear and uncertainty such laws create for doctors creates an "undue burden" on the right to abortion.

Attacks on statutes in 26 other states, including Virginia, also must pass muster under the new standard in lower courts. Justice Sandra Day O'Connor suggested that only those enacted by Kansas, Utah and Montana had a chance of survival.

"[They] avoid a principal defect of the Nebraska law," Justice O'Connor said in a side opinion that only she signed. She hinted she would join the court's dissenters in the Nebraska case and provide the critical fifth vote needed to approve a law that was somewhat different than the one Nebraska unsuccessfully defended.

Justice O'Connor mentioned two conditions: Drop ambiguity that might inhibit the more widely used "dilation and evacuation" (D&E;) method, in addition to the targeted "dilation and extraction" (D&X;) or partial-birth abortion, and include an exception to preserve a woman's health as the 1992 Casey decision required.

The Nebraska law failed on both counts, she said.

"If Nebraska's statute limited its application to the D&X; procedure [partial-birth abortion] and included an exception for the life and health of the mother, the question presented would be quite different than the one we face today," she said.

Justice Antonin Scalia said in court Wednesday what many anti-abortion activists said outside that a health-of-the-mother exception actually nullifies any abortion restrictions.

"The court must know, as most state legislatures banning this procedure have concluded, that demanding a health exception … is to give live-birth abortion free rein," he said.

Clarke Forsythe of Americans United for Life called Justice O'Connor's implied promise to approve legislation including a health exception, "an illusion, a national hoax."

The other partial-birth abortion laws targeted by the Center for Reproductive Law and Policy are from Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Missouri, New Jersey, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee and West Virginia.

In other business announced Thursday, but concluded at a conference Wednesday, the justices:

• Rejected claims by male athletes that Illinois State University violated the 1972 federal Title IX sex-bias law by abolishing men's wrestling and soccer teams to equalize opportunities with those provided for women. The appeal was supported in a friend of the court brief attacking quotas, filed by House Speaker J. Dennis Hastert, Illinois Republican and a former wrestling coach.

• Agreed to decide if companies that manufacture medical devices may be sued in state courts when equipment causes injury while used for off-label purposes, other than those for which it is approved by the Food & Drug Administration. The appeal involves a class action by more than 5,000 persons claiming spinal injury from surgical bone screws.

• Agreed to resolve a dispute between Maine and New Hampshire, both of which claim the area of Portsmouth Harbor that contains Portsmouth Naval Shipyard.

• Pointed up the long waits to resolve such original cases by issuing its final decree approving a settlement in U.S. vs. Alaska, a case the court agreed to hear 21 years ago on June 18, 1979.

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