Court Must Reaffirm Choice

Eight years after its last major ruling on abortion, the Supreme Court stands posed to write a new chapter in the history of reproductive law. Most of the abortion-related decisions since Roe v. Wade have been concerned with the process surrounding abortions--state rules requiring parental consent, spousal notice, waiting periods, information, record keeping--and not the abortion procedures themselves. However, Stenberg v. Carhart, argued last Tuesday before the court, gives the justices an opportunity to clarify the constitutionality of bans on certain abortion procedures, specifically so-called "partial-birth abortions." In the past five years, 30 states have enacted bans on partial-birth abortions, 18 of which have been blocked by federal or state courts.

Nebraska defines a "partial-birth abortion" as a procedure in which someone "performing the abortion partially delivers vaginally a living unborn child before killing the child and completing the delivery." However, "partial-birth abortion" is a misleading term--as well as a non-medical one--because the Nebraska law and the popular debate applies only to pre-viability abortions in which the fetus is unable to live outside the womb and therefore could not be "born" and survive.

Two types of procedures are most commonly used in a second-trimester abortion. In an intact dilation and extraction (D&X;) abortion, a doctor first brings the fetus by its feet into the birth canal, leaving the head--too large at that point in pregnancy to pass through the cervix--in the womb. To complete the procedure, the doctor punctures its skull and extracts its contents. In a dilation and evacuation (D&E;) abortion, the woman's cervix is also dilated, but the fetus is dismembered before being removed in pieces through the vagina. Under questioning from Justice Sandra Day O'Connor, Nebraska Attorney General Don Stenberg conceded that the state could not constitutionally prohibit D&E; abortions.

But in his argument, Stenberg maintained that the statute applies only to the D&X; procedure. However, Dr. Leroy Carhart argues--and a lower court agreed--that the law as written could be interpreted as including the D&E; procedure. And, according to Carhart, even in first-trimester procedures "fetal elements" sometimes enter the vagina before the fetus is dead, meaning that zealous prosecutors could use the law against doctors performing virtually any abortion. In fact, the Nebraska legislature passed up opportunities to more narrowly define the law to include only D&X;, which abortion-rights have interpreted as an attempt to target a wider range of procedures.

In its 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey decision, the Supreme Court ruled that a state may not create an "undue burden" for any woman making "the decision to terminate her pregnancy before viability." In striking down the Nebraska statute law last year, the United States Court of Appeals for the Eighth Circuit, in St. Louis, ruled that the statute's language was broad enough to encompass the D&E; procedure, imposing an "undue burden" on the woman seeking an abortion. Most of the lower federal courts that have addressed partial-birth abortion bans have ruled based on the "undue burden" standard. Because it has been applied unevenly in the lower courts, the Supreme Court took the case primarily in order to clarify the standard in its ruling.

In Casey, the court also said that states could pass laws regulating abortion only to protect a woman's health or to save the life of a viable fetus. "Whatever this ban does, it surely can't be urged that it serves either [purpose]," Justice Ruth Bader Ginsberg said. "This law doesn't serve the health of the woman. It doesn't serve the life of the fetus." By prohibiting the D&X; procedure, which has been recognized as a better alternative in some cases, the law would be detrimental to a woman's health. The Nebraska statute allows for exceptions only to preserve the life--not the health--of the mother. Though a small distinction, upholding this portion of the law could be construed as a major shift because it places a higher priority on the life of the fetus than on the health of the mother. With this law, the state also appears to be making medical decisions--deciding which procedures can be used--which takes away doctors' discretion.

The Nebraska law does not make sense on a number of grounds, both legal and moral. The state appears to feel that it is taking a stand against infanticide by trying to ban a procedure that removes the fetus intact while implicitly supporting one that removes it in pieces. As Justice O'Connor told Mr. Stenberg, "Both [D&X; and D&E;] are rather gruesome procedures." Therefore, it seems that were the state to target one, it should logically target the other.

Unfortunately, as Carhart's lawyer, Simon Heller, pointed out, "Every abortion procedure involves fetal demise."