Supreme Court Justices In Arguments Of Federal Abortion Ban Challenge Ask About Medical Details Of Banned Procedures

Supreme Court justices on Wednesday during arguments in a Department of Justice appeal to uphold a federal law banning so-called "partial-birth" abortion focused "intensely" on the medical methods used in the procedures banned by the law and its health implications, the Washington Post reports (Lane, Washington Post, 11/9). President Bush signed the Partial-Birth Abortion Ban Act (S 3) into law in November 2003. The Planned Parenthood Federation of America, the American Civil Liberties Union on behalf of the National Abortion Federation and the Center for Reproductive Rights on behalf of four abortion providers filed lawsuits alleging that the law is unconstitutional because of the absence of an exception for procedures preformed to protect the health of the pregnant woman. In place of a health exception, the law includes a long "findings" section with medical evidence presented during congressional hearings that, according to supporters of the law, indicates the procedures banned by the law are never medically necessary. Federal judges in California, Nebraska and New York each issued temporary restraining orders to prevent enforcement of the ban. The decisions were upheld by three-judge panels of the 9th Circuit Court of Appeals in San Francisco, the 2nd Circuit Court of Appeals in New York City and the 8th Circuit Court of Appeals in St. Louis. The Supreme Court in February agreed to hear oral arguments this fall in Gonzales v. Carhart, which is DOJ's appeal of the 8th Circuit Court panel's ruling. The court in June also said it will hear arguments in the appeal of the 9th Circuit Court panel's ruling, known as Gonzales v. Planned Parenthood (Kaiser Daily Women's Health Policy Report, 9/29). The court is expected to rule on the case by July 2007 (Anderson, Dow Jones, 11/8).

Court Precedent, Outlook
The Supreme Court in the 2000 Stenberg v. Carhart case ruled 5-4 to strike down a similar Nebraska law because it did not include a health exception (Bravin, Wall Street Journal, 11/9). "[D]o we owe more deference to a congressional finding or to Congress than to a state legislature?" Justice Stephen Breyer asked U.S. Solicitor General Paul Clement, who is arguing the appeal for DOJ. Clement said the court owes deference to both, and Breyer said, "So, if giving deference to Nebraska, we reach that conclusion there ... how can we reach a different conclusion here?" (Sedlar, CQ HealthBeat, 11/9). Justice David Souter asked Clement if DOJ wanted the court to overrule its Stenberg decision, to overrule the lower courts' ruling on medical findings or to give deference to Congress when Congress and the courts find different facts, the Journal reports. Clement said, "[W]e would urge you to take any one" of the three options (Wall Street Journal, 11/9). Chief Justice John Roberts and Justice Samuel Alito, both of whom were not on the court for the 2000 Stenberg ruling, are expected to uphold the Partial Birth Abortion Ban Act, the Los Angeles Times reports (Savage, Los Angeles Times, 11/9). Alito on Wednesday did not ask questions, and Roberts was involved throughout the arguments, according to the New York Times. Roberts appeared to be attempting to bolster Clement's arguments at times and also tried to make distinctions between the Nebraska law and the federal law, the Times reports (Greenhouse, New York Times, 11/9). Many people involved with groups challenging the law believe Justice Anthony Kennedy is "their only hope of prevailing." Kennedy dissented in the Stenberg case, but the Partial Birth Abortion Ban Act might run counter to Kennedy's views of federalism and upholding court precedent (Kaiser Daily Women's Health Policy Report, 11/6). According to the Post, Kennedy on Wednesday did not "tip his hand" on how he would rule on the case (Washington Post, 11/9).

Banned Procedures
The American College of Obstetricians and Gynecologists has said that the procedures banned under the measure -- called "intact dilation and extraction and evacuation" and "dilation and extraction" -- are increasingly regarded as the safest abortion procedures during the second trimester of pregnancy. The American Association of Pro Life Obstetricians and Gynecologists has said that other second-trimester abortion procedures not banned under the law -- including drug-induced labor and a dilation and evacuation procedure in which the physician "dismembers" the fetus inside the uterus -- are "medically appropriate" for all women. Clement has said that although there is disagreement among medical experts about the necessity of the banned procedures, the Supreme Court must defer to Congress' findings section (Kaiser Daily Women's Health Policy Report, 10/30). "The basic point of this statute is to draw a bright line between a procedure that induces a fetal demise in utero and one where the lethal act occurs when the child or the fetus, whichever you want to call it, is more than halfway outside the mother's womb," Clement told the court on Wednesday. He added that Congress can legislate the difference because "one is abortion" and "[t]he other is murder" (Washington Post, 11/9). Kennedy asked, "In how many ... instances is there serious health risk to the mother that requires the procedure, as opposed to (it) simply being an elective procedure?" CRR attorney Priscilla Smith answered that there is no solid data on the issue but added that the procedure is commonly performed by some physicians whose patients who are hemorrhaging, are developing cancer or are facing other serious medical conditions (Biskupic, USA Today, 11/9). "The only course here that preserves the independence of the judiciary, that exemplifies the importance of (settled precedent), not to mention the only course that will protect women from the needless risks of uterine perforation, infertility, sepsis and hemorrhage, is to hold the act unconstitutional," Smith said (Washington Post, 11/9).

Editorial, Opinion Piece
Although the procedures banned by the law are "awful to contemplate," the belief of "abortion opponents that this gruesome procedure is never necessary ... is not based on science," and the law is "an attempt to impose one group's beliefs on others," a USA Today editorial says. The procedures banned "can avert serious harm for some women, even determine whether they can have more children," the editorial says, adding that the Supreme Court would have to ignore such women to sustain the law (USA Today, 11/8). In an opposing USA Today opinion piece, Jay Sekulow -- chief counsel of the American Center for Law and Justice -- which filed a brief in the case -- writes that the court "has an important opportunity to do what it failed to do six years ago: allow an end to this horrific procedure." According to Sekulow, Congress reached "substantial factual findings" in the law after eight years of deliberations. The arguments of those challenging the law amount to "a claim that partial-birth abortion might in some cases be marginally safer for some women when compared with other abortion procedures," Sekulow writes, adding, "Such strained hypothetical scenarios do not justify knocking down the wall between abortion and infanticide" (Sekulow, USA Today, 11/8).

Several NPR programs recently reported on the Supreme Court's consideration of the federal abortion ban:

• NPR's "All Things Considered": The segment includes comments from Justices Alito, Ruth Bader Ginsburg, Kennedy, Antonin Scalia and John Paul Stevens; Clement and Smith; and protestors (Totenberg, "All Things Considered," NPR, 11/8). Audio of the segment is available online.
  
  
• NPR's "Day to Day": The segment includes comments from Dahlia Lithwick, legal analyst for Slate magazine (Chadwick, "Day to Day," NPR, 11/8). Audio of the segment is available online.
  
  
• NPR's "Morning Edition": The segment includes comments from Justices Breyer, Kennedy and Bader Ginsburg; Clement; and Eve Gartner, a PPFA attorney (Totenberg, "Morning Edition," NPR, 11/9). Audio of the segment is available online.
  

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