Supreme Court Hears Arguments about Partial-Birth Abortion Ban

By Linda Orlando

A law passed by Congress in 2003 banned the practice of so-called "partial birth abortions," a term coined by abortion opponents to describe a gruesome procedure where an abortion is performed during the second trimester of pregnancy. Doctors most often refer to the procedure as a "dilation and extraction" or an "intact dilation and evacuation" abortion. It involves partially extracting a living fetus from the uterus, then cutting or crushing its skull. There are a few thousand such abortions performed annually in the United States, out of more than 1.25 million abortions.

Abortion supporters argue that partial-birth abortions in the second trimester of pregnancy are safer for women than abortions performed earlier, and that in many cases it is necessary to save the life of the mother. Six federal courts across the country have struck down the law, saying that it interferes with a woman’s constitutional right to an abortion as established by the Supreme Court’s Roe v. Wade ruling in 1973.

The cases being debated before the high court are Gonzales v. Carhart, 05-380, and Gonzales v. Planned Parenthood, 05-1382. Dozens of people camped through the night outside the Supreme Court building, and a long line of people hoping to get inside to watch the proceedings stretched across the court’s plaza for hours before the session was scheduled to begin.

Partial-birth abortion is not a medical term, but abortion opponents say the term is an accurate term for "a rarely used and gruesome late-term abortion procedure that resembles infanticide," as Solicitor General Paul Clement said in papers filed before the court. Clement is arguing the case for the Bush administration. The abortion supporters are being represented by Priscilla Smith, who argued for striking down the federal law. Abortion rights proponents say that the law passed by Congress threatens almost all abortions that take place after the third month of pregnancy. Seven justices took part in questioning both sides about whether the high court should accept congressional findings that partial-birth abortions are never medically necessary.

Justice Samuel Alito, who is hearing his first abortion cases since being appointed to the court earlier this year, sat silently and listened during the two hours of arguments. Justice Ruth Bader Ginsberg asserted that the claim that partial-birth abortion is a particularly gruesome procedure could also apply to the most commonly used method of second-trimester abortion. "I don’t think so, Justice Ginsberg," Clement replied. Ginsburg then asked if the procedures used for the two types of abortions are essentially the same, and therefore it would be hard to determine whether a doctor could be prosecuted for performing the banned method. Clement responded that the record doesn’t support that notion.

By a 5-4 vote in 2000, the court invalidated a similar law in Nebraska because if was a broad measure encompassing other abortion methods, and did not contain any provision to allow the procedure when the mother’s life was in danger, which is a basic requirement of Supreme Court abortion rulings. But since that time, the composition of the court has changed, as well as the involvement of Congress in the issue by fine-tuning the law to overcome the objections raised by the ruling of the court in the Nebraska case.

Abortion opponents are optimistic that the court will uphold the law because Justice Sandra Day O’Connor has retired, and her place has been filled by Justice Samuel Alito. O’Connor was part of the majority in the Nebraska case that struck down a similar law. Because President Bush appointed both Alito and Chief Justice John Roberts, most legal analysts believe they two will support the Bush administration’s ban on partial-birth abortions. Justice Anthony Kennedy, the court’s swing voter, was a strong dissenter in the Nebraska case, so many analysts believe he is unlikely to support striking down the law.

Police arrested an anti-abortion protester, Rives Miller Grogan, charging him with making "a harangue or oration"—uttering loud, threatening, or abusive language—in the Supreme Court building. Grogan was removed from the courtroom about 40 minutes into the proceedings because he began yelling at the court from the audience. If convicted, he could face up to 60 days in jail.