Major Abortion Case Goes to Justices

Times Staff Writer

The Supreme Court set the stage Tuesday for a major ruling on abortion by agreeing to decide whether Congress can outlaw what critics call “partial-birth” abortions through the second trimester of a pregnancy.

The fate of a federal law, the first nationwide ban on an abortion procedure, is probably in the hands of President Bush’s two new appointees: Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

The court has been closely split in the past on how strictly the government may regulate abortion, with former Justice Sandra Day O’Connor usually casting a deciding vote.


Alito, O’Connor’s replacement, took his seat on the bench for the first time Tuesday morning -- just as the court’s staff was issuing a list of cases that will be heard in the fall. It included Gonzales vs. Carhart, the Bush administration’s appeal of a lower court ruling that declared unconstitutional the Partial-Birth Abortion Ban Act of 2003.

The legal dispute now turns on two questions: Can the government regulate abortion in a way that might endanger the health of some women? And whose opinion deserves greater weight in deciding whether this abortion procedure is needed -- members of Congress or the medical experts who testified in court?

The high court will hear arguments on the case in October. A ruling is not likely to deal directly with Roe vs. Wade and the basic right of women to choose abortion. However, a victory for the administration would signal that the reconstituted court is more willing to regulate and restrict abortion.

Justice Anthony M. Kennedy has voted to uphold the basic right to abortion, but has said states may ban the procedure in question, known as intact dilation and extraction. Roberts and Alito are believed to be abortion opponents, and they -- joined by Justices Antonin Scalia and Clarence Thomas, who say the government may ban all abortions -- could help form a new majority to uphold the federal ban.

Six years ago, the high court struck down a state ban on the controversial procedure in a Nebraska case, saying medical experts believed that procedure was safer for the woman because it reduced the risk of bleeding and infections. The decision came on a 5-4 vote, with O’Connor in the majority.

Republican lawmakers then pushed through a federal ban that could send doctors who perform such abortions to prison for two years. They said the procedure was gruesome and inhumane because it involved crushing the skull of the fetus as it was removed. Congress also said that the abortion procedure was “never medically indicated.”

Appealing the ruling that the federal law was unconstitutional, U.S. Solicitor General Paul D. Clement, representing the Bush administration, said the high court should give “substantial deference ... to Congress’ factual findings” that this particular kind of abortion was not a needed procedure.

On Tuesday, antiabortion groups welcomed the court’s decision to revisit the issue. The American Center for Law and Justice said it was “hopeful the high court will put an end to this barbaric procedure.”

But supporters of abortion rights said they worried the court’s action was a signal of trouble ahead. Planned Parenthood called the decision to take up the case a “dangerous act of hostility” toward women.

During the 1990s, President Clinton vetoed a federal bill to outlaw such abortions, saying it posed a threat to the health of some women. When Congress passed the Partial-Birth Abortion Ban Act of 2003, Bush signed it, saying it would end a “terrible form of violence [that] has been directed against children who are inches from birth.”

The four other justices -- John Paul Stevens, David H. Souter, Stephen G. Breyer and Ruth Bader Ginsburg -- say the government may not endanger the health of women when it regulates abortions. They voted to strike down the Nebraska ban six years ago, and they are almost certain to favor striking down the federal ban as well.

Unlike much of the public debate, this legal battle does not turn on whether later abortions should be permitted, but rather on how the surgery is performed.

Most abortions take place during the first three months of pregnancy, when doctors remove the soft fetal tissue through a suction tube.

Abortions become more complicated after the 12th week. Some physicians, including Dr. Leroy Carhart of Bellevue, Neb., say they give the patient anesthesia and seek to remove the fetus intact and then cut the umbilical cord. He and other doctors say this procedure poses less risk for their patients. This is the procedure that opponents refer to as “partial-birth abortion.”

Other doctors remove the fetus in pieces, and this alternative procedure is not under challenge.

Although intact dilation and extraction is often described as a late-term abortion, the Supreme Court has upheld use of the procedure only for abortions during the first 24 weeks of a pregnancy. After that time, the fetus is considered viable and abortions may be prohibited.

The federal law bans the disputed abortion procedure throughout a pregnancy. Doctors are challenging the ban only for the period up to 24 weeks. Carhart said he used the disputed procedure for abortions between the 14th and 20th weeks of a pregnancy.

When Carhart sued to block the federal law from taking effect, 16 physicians testified before a federal judge in Nebraska. They included medical experts from some of the nation’s leading universities, including Columbia, Yale, Northwestern and Cornell. The experts said the procedure was needed in some instances.

Based on their testimony, U.S. District Judge Richard Kopf said the federal ban was unconstitutional. The “overwhelming weight of the trial evidence proves that the banned procedure is safe and medically necessary,” he said.

The U.S. Court of Appeals in St. Louis agreed. Since then, two other appeals courts have reached the same conclusion.

In September, the administration appealed the issue to the Supreme Court, but the justices waited to act on the appeal until Alito was confirmed.