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Justices Have Pointed Abortion Discourse
Clement told justices that it is significant whether "fetal demise takes place in utero or outside the mother's womb. The one is abortion, the other is murder."
Eve Gartner, arguing on behalf of Planned Parenthood Federation of America, said, "What Congress has done here is take away from women the option of what may be the safest procedure for her. This court has never recognized a state interest that was sufficient to trump the women's interest in her health."
Four justices remain on the court who were part of a five-vote majority opinion that invalidated a similar Nebraska law six years ago because it lacked an exception to preserve a woman's health and encompassed a more common abortion method.
Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and Stevens all indicated they were troubled either by the federal law's lack of a health exception and its apparent disregard for a significant body of medical opinion that the procedure can be the best choice.
Justice Anthony Kennedy raised questions about the law, but also voiced concerns six years ago before he wrote an impassioned dissent saying he would have upheld the Nebraska law.
Chief Justice John Roberts appeared favorably inclined to the administration's defense of the law. He asked several times whether there was any evidence to suggest the banned abortion procedure was anything more than marginally safer than the more common dilation and evacuation method, in which a fetus is dismembered as it is removed from the uterus.
Justice Samuel Alito, hearing his first abortion arguments since joining the court earlier this year, sat silently through two hours of debate. Justice Antonin Scalia, a vocal abortion opponent, also was uncharacteristically quiet through the arguments.
Justice Clarence Thomas was out sick Wednesday, but will take part in deciding the cases, Roberts announced.
A ruling is expected before July.
The cases are Gonzales v. Carhart, 05-380, and Gonzales v. Planned Parenthood, 05-1382.
Associated Press writers Pete Yost and Matt Apuzzo contributed to this report.
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