Last Tuesday the Supreme Court heard the case of Stenberg v. Carhart. Its ruling will determine the constitutionality of laws prohibiting so-called "partial-birth" abortions. While we are hopeful that the Nebraska law will be overturned, the debate is a reminder of the continued attacks upon a woman's right to choose.
Dr. Leroy Carhart, the man challenging the Nebraska law, is a 58-year old retired Air Force lieutenant colonel. When the Nebraska legislature passed a law against performing partial-birth abortions--in fact a procedure medically known as dilation and extraction (D&X;)-- Carhart found himself facing 20 years in jail for performing these abortions. That's twice the jail time he would have faced for performing abortions before Roe v. Wade. Carhart is the only doctor in Nebraska who will perform abortions in the second-trimester, before the fetus is viable. Roe v. Wade already allows states to ban or limit access to third-trimester abortions, except in cases where the life or health of the mother are threatened.
Since direct challenges to Roe v. Wade have repeatedly been struck down by the Supreme Court, anti-abortionists have adopted the tactic of attacking procedures one-by-one. The D&X; procedure is an easy target. It is infrequently used and lends itself to graphic depictions by anti-abortionists in now-famous cartoon drawings of the procedure sent to members of Congress. However, its alternative, dilation and evacuation (D&E;), the typical abortion procedure performed in the first and second trimesters, is equally gruesome. In fact, the two procedures are so similar that the wording in the Nebraska law is vague enough to call into question whether D&E; would be legal under the law, meaning that the law potentially bans any first or second trimester abortions. The Nebraska legislature actually voted down an amendment that would specifically ban D&X; abortions instead of the vaguely worded "partial birth" abortion. The reason: Banning only the D&X; procedure was not the intent of the bill's sponsors--the idea was to stop almost all abortions from being performed.
The Supreme Court should find clear precedent to reject the law on these grounds. Because "partial-birth" can describe both procedures, the Nebraska law clearly poses an "undue burden" upon women seeking abortions, a test the Supreme Court first applied in a ruling eight years ago on the constitutionality of limiting abortion procedures.
While the Nebraska ban does allow the procedure when it would save a woman's life, it has no protections for a woman's health. Therefore, a doctor would be required to perform a potentially unsafe abortion if this procedure were banned. By failing to take into account this eventuality, the Nebraska law devalues the life, health and safety of women.
The Nebraska law is a good example of the "partial birth" abortion bans that have been passed by legislatures in 30 states. By striking down the Nebraska law the Supreme Court will be setting a precedent that both protects reproductive rights and discourages the passage of similar laws which attempt to ban procedure by procedure what cannot be banned constitutionally.