After election, Supreme Court returns to abortion issue

By MARK SHERMAN

The Associated Press

WASHINGTON -- Americans still will be chewing over election results Wednesday morning when the nine Supreme Court justices file into their courtroom for two of the biggest cases of the young term.

Voters in some states will be deciding whether to impose restrictions on abortions; one proposal would outlaw almost all abortions in South Dakota.

In the marble courthouse across the Capitol, this most politically charged of issues also will be under consideration.

The court will be discussing whether to uphold the first nationwide restrictions on an abortion procedure since the justices' landmark ruling in Roe v. Wade in 1973 that established a woman's constitutional right to an abortion.

Almost everything about a procedure opponents call partial-birth abortion is disputed.

Abortion rights advocates call the term an oxymoron that incongruously links abortion and birth as part of a political strategy to chip away at the Roe ruling.

"It's intended to obfuscate and in that, it's been successful," said Dr. David Grimes, the former chief of the government's abortion surveillance program. He now is affiliated with Planned Parenthood of America.

Abortion opponents argue that the name aptly describes "a rarely used and gruesome late-term abortion procedure that resembles infanticide," as the Bush administration said in its legal filings. Most of the procedures, medically known as dilation and extraction abortions, appear to take place in the middle third of pregnancy.

There were 1.3 million abortions in the United States in 2002; all but about 130,000 came in the first 12 weeks of pregnancy. The early abortions are not at issue.

Estimates of the late-term abortions at issue range from 2,200 a year to upward of 5,000, although the data is not precise.

What makes the method "gruesome" for some -- a federal judge who struck down the law also described it that way -- is that it involves partially extracting a fetus from the uterus, then cutting or crushing its skull.

But the dispute is not over whether a woman may end a pregnancy, but how the abortion should be performed.

The administration, for instance, argues that law does not restrict a more common dilation and evacuation method in which the fetus is dismembered in the uterus and then removed in pieces.

Lawyers for Planned Parenthood and doctors who challenged the ban say medical decisions, including which abortion method is safest for a patient, must be left to doctors. They also worry the law could apply to almost all second-trimester abortions, threatening doctors who perform them with up to two years in prison.

They are attempting to keep the focus on women such as Carrie Elliott, who was overjoyed to learn she was pregnant last fall at age 40. But by mid-January, when Elliott was nearly 20 weeks pregnant, genetic testing had confirmed that her fetus had a severe form of a rare disorder, cat eye syndrome, including failing kidneys.

"We wanted her so badly," Elliott said in a halting voice in a recent telephone interview from her home in the southwestern United States, "but we made the decision to let her go."

Elliott and her husband, Corey, said they simply did not have information early enough to decide on an abortion in the first 12 weeks of pregnancy.

"More so now than ever, I really feel these kinds of decisions are best left to the woman, the partner and the doctor. Period," she said.

The administration, backed by the anti-abortion movement, is equally determined to highlight the procedure.

"A physician partially delivers the fetus intact, and then intentionally kills it, typically by puncturing its skull and vacuuming out its brains," Solicitor General Paul Clement, the administration's Supreme Court lawyer, wrote in his brief.

"Babies killed during such partial-birth abortions are alive until the end of the procedure" and experience pain, Clement said, using the same words Congress wrote into the law that is at issue before the court.

If there is a sense that the court has been here before, it has. Six years ago, the Supreme Court struck down a similar ban in Nebraska by a 5-4 vote.

That law was held invalid because the court found it encompassed other abortion methods. The law also did not contain an exception that would allow the procedure to preserve a woman's health, an underpinning of Supreme Court abortion rulings.

Three years later, however, Congress passed the Partial Birth Abortion Ban Act. Lawmakers said the procedure was never medically necessary, eliminating the need for a health exception, and attempted to define the type of abortion more precisely to avoid overreaching. President Clinton twice vetoed earlier versions of the law; President Bush signed this one in November 2003.

Yet six federal courts on both coasts and in the Midwest struck down the law, based on lengthy trial testimony, because they found it had the same defects that doomed the Nebraska statute.

Why, then, are abortion opponents and even some on other side convinced that the Supreme Court will reach a different conclusion?

To put it simply, Justice Sandra Day O'Connor has retired, depriving abortion rights supporters of a likely fifth and decisive vote against the ban.

Little in the past experience of the two new members of the court appointed by Bush, Chief Justice John Roberts and Justice Samuel Alito, signals an inclination to side with abortion rights supporters, although both men testified at their confirmation hearings of the importance of respecting high court precedent.

Justice Anthony Kennedy, the court's swing voter following O'Connor's retirement, has been the object of much attention in the mountain of legal filings in these cases.

Kennedy was a forceful dissenter in the Nebraska case. "The state chose to forbid a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life, while the state still protected the woman's autonomous right of choice," he wrote. "The Court closes its eyes to these profound concerns."

Priscilla Smith, who will argue the case on behalf of doctors who challenged the federal law, said she believes Kennedy can be swayed this time around by substantial evidence, including the testimony of 13 medical experts, that the procedure can be the safest choice.

Jay Sekulow, a prominent abortion opponent who is chief counsel for the conservative American Center for Law and Justice, said he is increasingly optimistic the court will uphold the abortion ban.

"There is not a lot of wriggle room in what Kennedy wrote," Sekulow said. "It was such a powerful dissent. I don't see him moving away from that."

The cases are Gonzales v. Carhart, 05-380, and Gonzales v. Planned Parenthood, 05-1382.

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