By Paul Tuns
The Interim

On April 25, the U.S. Supreme Court heard arguments in the Stenberg v. Carhart case which will decide whether or not states have the right to ban partial-birth abortion (PBA).

The 8th Circuit Court of Appeals overturned a Nebraska law that prohibited PBA when abortionist Leroy Carhart sued the state saying that such a ban impedes his right to commit whichever form of abortion he sees fit. Pro-abortion groups also claim that the ban could prohibit other abortion methods because of supposedly vague wording in the statute.

Nebraska Attorney-General Donald Stenberg wants the ban reinstated because the procedure “borders on infanticide.” Stenberg said “The state interest here is in drawing a bright line between abortion and infanticide.” He said that “If a state can’t ban a little-used, particularly barbaric procedure where other alternatives are available, then essentially the state can’t regulate any abortion procedures.”

Stenberg said the Constitution does not guarantee a right “to literally tear the arms and legs off of living, unanesthetized, mid- and late-term, human children, and-or pull them from the womb, puncture their skills and suction out their brains.”

During arguments, Justice Antonin Scalia described PBA as a “horror” involving the taking of “a living, unborn child” from the mother and “killing that unborn child.” Failing to ban PBA could “render society callous to infanticide.” He asked if that was not “a valid societal interest.”

Simon Heller, the lawyer representing Carhart, said none of the state’s purported interests “is sufficient to override” the “woman’s interest in her health and bodily integrity.” Heller claimed the ban is “so broadly written it could prohibit most second trimester abortions.”

Justice Scalia questioned Heller’s claim that the ban would outlaw all abortions because PBA and other methods were “distinctive procedures.”

He also asked Heller whether there was a state interest in “preventing the coarsening of matters through witnessing the destruction of a live human being outside the womb.” Heller evaded that question.

Heller also criticized the law because it did not include the classic pro-abortion exception for the “health” of the mother. Chief Justice William Rehnquist wondered whether “there will be doctors who will say that there is always a health exception.”

Justices Scalia, Rehnquist and Clarence Thomas appeared to favour to reinstating the law.

Four justices accepted various pro-abortion arguments. Justice Stephen Breyer wondered about the lack of safe alternatives; Justice John Paul Stevens said that the procedure was the most appropriate for some women; Justice David Souter said the law appeared “cavalier” in overriding the judgment of doctors; Justice Ruth Bader Ginsburg said the law does not take the health of the woman into account and does not further the life of the fetus since other abortion methods could be used anyway.

(Those arguments are countered by Focus on the Family’s Carrie Gordon Earll, who notes “Partial birth abortion is never medically necessary, is actually dangerous to the health of women and brutally kills a living child just inches from birth.”)

Most observers say the decision hinges on the swing votes of Justices Sandra Day O’Connor and Anthony Kennedy. Both seem inclined to maintain the lower court’s decision overturning the law. O’Connor raised concerns about the lack of exceptions for the health of the mother.

University of Notre Dame law professor Douglas W. Kmiec has noted the Supreme Court has already said that states can place some limits on abortions such as requiring parental notification for abortions performed on minors. The question becomes what are constitutionally acceptable limits.

A brief submitted to the court by the Family Research Council said the ban is “a reasonable and necessary means of protecting neonatal and partially born human life.”

Concerned Women for America (CWA) says it is significant that an abortionist and not patients are suing the state. “Their goal is to eliminate any rules or limits on abortion, with abortionists deciding for themselves with no oversight what methods to use, regardless of the pain inflicted on the patients,” says CWA.

A decision is expected by late June. It will be the first abortion ruling by America’s top court since 1992 when it affirmed Roe vs. Wade, which claimed a constitutional right to abortion.