No Pointers to Ruling in Abortion Case

Mary Lou Greenberg, right, an abortion-rights advocate, and antiabortion protester Andrew Wilson of House of Prayer in Texas, demonstrate in the rain at the Supreme Court yesterday.
Mary Lou Greenberg, right, an abortion-rights advocate, and antiabortion protester Andrew Wilson of House of Prayer in Texas, demonstrate in the rain at the Supreme Court yesterday. (By Carol Guzy -- The Washington Post)

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By Charles Lane
Washington Post Staff Writer
Thursday, November 9, 2006

Two hours of oral argument on a federal "partial birth" abortion ban at the Supreme Court yesterday showed that the justices are intensely focused on the procedure's medical details and health implications -- but produced few clues as to how they might rule.

As expected, the court's four most liberal members, Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, sounded skeptical about the statute. Of the court's conservatives, only Chief Justice John G. Roberts Jr. said much at all, asking questions that implied the law should be upheld.

That left plenty of time for Justice Anthony M. Kennedy, whom both sides in the case consider the likely swing vote, to listen to the lawyers and air his concerns -- though he did not tip his hand.

At one point, Kennedy, who dissented when the court struck down a similar state ban in 2000, repeated a concern he voiced in that case. "Your argument," he told Priscilla Smith, a lawyer for doctors challenging the law, "is that there is always a constitutional right to use what the physician thinks is the safest procedure."

But later, Kennedy expressed worry that the federal ban might leave some women at "risk if the uterine wall is compromised by cancer or some forms of preeclampsia," a dangerous spike in blood pressure.

Such health questions are central to the most important abortion case to reach the court in half a decade.

The federal law, passed by Congress and signed by President Bush in 2003, bans the procedure known medically as "intact dilation and extraction," which usually occurs in the second trimester of pregnancy. It generally involves the breech delivery of a fetus, followed by the collapsing of its skull to permit removal. The term "partial birth abortion" is preferred by opponents of the procedure.

The ban does not apply when a woman's life is at risk, but Congress made no exception to preserve a woman's health. Abortion rights advocates say this omission is unconstitutional under the 2000 Supreme Court ruling. All lower federal courts to consider the matter have agreed, so the law has not yet been enforced.

But Solicitor General Paul D. Clement, defending the law, told the court yesterday that Congress properly found that "partial birth abortions were never medically necessary, and that safe alternatives were always available such that no woman would be prevented from terminating her pregnancy."

As a result, he said, Congress had authority to ban what he called "a particularly gruesome procedure that blurred the line between abortion and infanticide."

That argument drew a sharp response from Stevens, who noted that the alternative procedure, dilation and evacuation, requires the dismemberment of the fetus before removal. "Congress has made the judgment that it is far preferable to ensure that fetal demise takes place before any delivery begins," Stevens noted sardonically. "That's the big issue."

"The basic point of this statute is to draw a bright line between a procedure that induces 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 of the mother's womb," Clement replied.

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