High Court Rejects Abortion Ban

In its first look at a ban on so-called “partial-birth abortions,” the Supreme Court on Monday rejected Ohio’s effort to limit how doctors perform some late-term abortions.

By a 6-3 vote, the justices refused to hear the state’s appeal of two lower court decisions striking down its law. The Ohio measure, the nation’s first such law, made it a crime for a doctor to “insert a suction device into the skull of a fetus” so as to shrink its head and thereby safely remove the body from the mother.

Monday’s action by the high court is not a final national ruling on the matter. But so far, every one of the new state laws on partial-birth abortions that has been challenged in court has been blocked or struck down as unconstitutional.

For its part, the Supreme Court has refused repeatedly to limit abortions during the first six months of a woman’s pregnancy.

The vast majority of abortions nationwide, an estimated 1.5 million each year, are performed during the first three months of a pregnancy. Later, as the fetus grows, the procedure becomes more difficult, although doctors try to avoid full-blown surgery.

In 1992, Dr. Martin Haskell, an abortion doctor in Dayton, Ohio, told physicians attending a conference of a new procedure for aborting a large fetus after 20 weeks of a pregnancy.

At this stage, some doctors dismember the fetus inside the uterus and remove it in parts. As an alternative, Haskell said, he pulled the fetus feet-first from the mother and inserted a suction device in the skull to shrink the head, making it easier to remove. He also described cutting the umbilical cord before beginning the procedure.

But officials of the National Right to Life Committee seized on Haskell’s presentation to launch a publicity campaign against late-term abortions. They charged that babies were being partially delivered alive and then killed by a needle inserted in the head.

Outraged by this gruesome specter, lawmakers in several states passed laws against partial-birth abortions. Republican leaders in Congress did the same, although President Clinton vetoed the bills.

Ohio’s law applied to all abortions. Doctors could be charged with a crime whether or not the fetus was alive when they performed the abortion.

State lawmakers said they acted to prevent “unnecessary cruelty to the human fetus” and Ohio’s lawyers urged the federal courts to halt these partial-birth abortions.

But after a six-day trial in Dayton, U.S. District Judge Walter Rice concluded that Haskell’s abortion method was “the safest procedure” and “posed less of a risk to maternal health” compared to other methods of aborting a fetus after 20 weeks of pregnancy.

He struck down the law as unconstitutional because it banned abortions before the time the fetus is viable.

In November, the U.S. appeals court in Cincinnati agreed on a 2-1 vote.

Ohio’s governor appealed to the Supreme Court, which Monday rejected his petition (Voinovich vs. Women’s Medical Professional Corp., 97-934).

Even the three dissenters, Chief Justice William H. Rehnquist and Justices Clarence Thomas and Antonin Scalia, did not say they would uphold the ban on the specific abortion procedure. Instead, Thomas wrote a five-page opinion defending another part of the law, which would have limited some late-term, or “post-viability,” abortions.

Since the Roe vs. Wade ruling of 1973, states have been prohibited from banning abortions before the time a fetus can live on its own. Technically, states can prohibit abortions after that point in a pregnancy.

But the high court has said even these late abortions are allowed if they are necessary to protect the mother’s life or “health,” both physical and mental.

Ohio lawmakers sought to close this loophole and prohibit all third-trimester abortions except when needed to save the mother’s life or prevent “irreversible” damage to her body.

This too was struck down by District Judge Rice. Justice Thomas called this decision “unwarranted” and urged that it be reconsidered.

Abortion-rights advocates applauded the court’s action Monday and predicted that it probably will doom the 19 other state laws on partial-birth abortions.

“There is no such thing in medical terminology as a partial-birth abortion. This term was made up by the Right to Life Committee,” said Simon Heller, an attorney for the Center for Reproductive Law and Policy in New York.

Monday’s court action “should be a wake-up call to state legislators across the nation,” Heller said.

But abortion foes discounted the significance of the Ohio case since its law, unlike those in the other 19 states, did not specifically refer to “partial births.”

“Eventually, the Supreme Court will have to clarify the legal status of the living, partially born infants who are killed in these procedures,” said Douglas Johnson of the National Right to Life Committee here.

The bill pending in Congress would make it illegal for a doctor to “partially vaginally deliver a living fetus before killing the fetus and completing the delivery.”

Such laws are on the books in Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Illinois, Indiana, Louisiana, Michigan, Mississippi, Montana, Nebraska, New Jersey, Rhode Island, South Carolina, South Dakota, Tennessee and Utah.

Meanwhile, the court agreed to hear an anti-union challenge to labor contracts that require workers to be a “member of the union in good standing.”

Lawyers for the National Right to Work Committee said this common rule illegally fools workers into believing that they must pay full union dues to get jobs.

In fact, workers in union industries can be forced to pay only their fair share of the costs of collective bargaining.

Naomi Marquez, a part-time actress from Seattle, challenged the Screen Actors Guild, which had required her to pay $500 for a one-day job that would pay her $550. She refused and lost the work.

Her case (Marquez vs. Screen Actors Guild, 97-1056) will go before the court in the fall.