By MARK SHERMAN
The Associated Press
Thursday, November 9, 2006; 10:05 AM
WASHINGTON -- The graphic details of a disputed abortion procedure filled the Supreme Court on Wednesday as justices voiced concern with a federal ban on that operation.
Justices brought up uncomfortable images in sharp questions to lawyers on both sides. The issue: whether Congress was within its rights when it banned a procedure opponents call partial-birth abortion, for which there is little hard data and much disagreement.
"Wouldn't the fetus ... suffer a demise in seconds anyway?" Justice John Paul Stevens asked, focusing on the law's ban on how, rather than whether an abortion may be performed.
Solicitor General Paul Clement replied: "Well it may be seconds, it may be hours."
"Do you not agree that it has no chance of surviving, in most cases?" Stevens asked again.
In an intense morning of arguments, lawyers for the Bush administration and supporters of abortion rights gave starkly contrasting views on the practice: A law passed by Congress and signed by President Bush in 2003 labels it gruesome, inhumane and never medically necessary. Supporters argue that such abortions sometimes are the safest for women.
An anti-abortion protester in the audience began shouting midway through the first of two hours of arguments, briefly disrupting the hearing before police dragged him away.
A day after voters defeated abortion restrictions in three states, hundreds of protesters gathered in the rain outside the court. Anti-abortion advocates curled up in the fetal position along the wet sidewalk, forcing pedestrians to step over them as abortion rights groups chanted and held signs nearby.
The Bush administration is defending the law as drawing a bright line between abortion and infanticide. The method involves partially extracting an intact fetus from the uterus, then cutting or crushing its skull.
Doctors most often refer to the procedure as a dilation and extraction or an intact dilation and evacuation abortion.
The procedure appears to take place most often in the middle third of pregnancy. There are a few thousand such abortions, according to rough estimates, out of more than 1.25 million abortions in the United States annually. Ninety percent of all abortions occur in the first 12 weeks of pregnancy, and are not at issue.
Six federal courts have said the law is an impermissible restriction on a woman's constitutional right to an abortion.
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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