No Pointers to Ruling in Abortion Case
Likely Swing Vote Kennedy Asks Questions Without Disclosing His Position

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.

Clement said that Congress is entitled to legislate the distinction. "The one is abortion," he said. "The other is murder."

But Smith noted that there is no such bright line because doctors performing dilation and evacuation sometimes bring out a fetus up to the midsection while trying to dismember it in utero.

Depicting the federal ban as a direct challenge to the court's authority, Smith told the court, "The only course here that preserves independence of the judiciary, that exemplifies the importance of [settled precedent], not to mention the only course that will protect women from needless risks of uterine perforation, infertility, sepsis and hemorrhage, is to hold this act unconstitutional."

The most dramatic moment of the morning came moments later, at about 10:40 a.m., when a loud voice cried out from the back of the courtroom.

"Abortion is the shedding of innocent blood!" shouted a man later identified by the court as Rives Miller Grogan, 40, of Los Angeles. He was immediately tackled and dragged out by Supreme Court police, who charged him with violating a federal law against disrupting court sessions, as well as with offenses related to resisting arrest.

Grogan's protest, the first such incident in recent memory at the court, momentarily stunned the spectators and justices and interrupted Smith, who was explaining that Congress's findings that the procedure is never medically necessary were "simply unreasonable" and so thoroughly contradicted by medical experts as to carry no legal weight.

Roberts challenged that claim, asking Smith if the "marginal benefit in safety" from using the procedure is "enough to override the state's articulated interest?"

Smith responded that doctors have testified "that the reduction in risk" from using the procedure is "significant."

Kennedy had earlier asked Smith how often in practice such risks arose, but she conceded that there were no statistics.

As if to reinforce Kennedy's concern on that point, Roberts returned to it several times during the argument, telling Smith at one point that "we don't have any record evidence about how often the complications arise, so it's hard to get a handle on exactly what the difference is in terms of safety."

The cases are Gonzales v. Carhart , No. 05-380, and Gonzales v. Planned Parenthood , No. 05-1382. A decision is expected by July.

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