By RICHARD CARELLI, Associated Press Writer
WASHINGTON (AP)--The Supreme Court dramatically
limited states' power to ban so-called "partial-birth" abortions
Wednesday, a 5-4 ruling that immediately escalated the bitter,
decades-old debate over women's right to end their pregnancies.
Closing out its 1999-2000 term with some of the most divisive
rulings in years, the court struck down Nebraska's partial-birth
abortion law as an "undue burden" on women's rights.
Twenty nine other states have
similar laws, but the justices disagreed on just how their ruling
ultimately will affect those other laws. More litigation seemed
certain. James Bopp, a lawyer for the National Right to Life
Committee, called the decision "a radical expansion of the abortion
right." Clarke Forsythe of Americans United for Life added: "It's
the most extreme decision on abortion ever issued by the Supreme
Court." The court first legalized abortion nationwide in its famous
Roe v. Wade ruling, the 1973 landmark based on women's
constitutional rights. Those rights were upheld in 1992 by a 6-3
vote, the court's last major ruling on abortion. Nothing in
Wednesday's decision suggested the court's vote split on the core
abortion issue had changed.
Abortion-rights advocates
expressed more relief than joy. Janet Benshoof, whose Center for
Reproductive Law and Policy represented the Nebraska doctor who
challenged his state's law, said the close vote "demonstrates that
the right to choose is a fragile one." Planned Parenthood added:
"While it looks like a victory, this is a beginning -- not the end.
Anti-choice state legislatures and governors across the country will
use this ruling as a blueprint for drafting new bans on abortion
procedures." In other decisions, the court said: --Gave states
greater leeway to restrict anti-abortion demonstrators outside
clinics. The ruling upheld a Colorado limit on "sidewalk
counseling." --The Boy Scouts can ban homosexuals from serving as
troop leaders. By extension, the ruling in a New Jersey case could
let the Scouts exclude as well young boys who say they are gay.
--Significantly lowered the figurative wall of separation between
church and state by ruling in a Louisiana case that taxpayer money
can be used to buy computers and other instructional materials for
religious schools.
The emotional abortion issue
already had become entwined with this year's presidential election
because Republican George W. Bush supports bans on partial-birth
abortions and Democrat Al Gore opposes them. President Clinton said
the nation's next president is likely to replace two to four Supreme
Court justices. "Depending on who they are," he said, abortion
rights are "very much in the balance." The Republican-led Congress
is working out final details of a bill that would ban the grisly
surgical procedure. President Clinton has vetoed tow such bills.
Partial-birth abortion is not a medical term. Doctors call the
method dilation and extraction, or D&X, because it involves
partially extracting a fetus, legs first, through the birth canal,
cutting the skull and draining its contents. A more common procedure
is dilation and evacuation, or D&E, in which an arm or leg of a
live fetus may be pulled into the birth canal during the abortion
operation. The court said the Nebraska law, while purportedly aimed
only at the D&X method, could criminalize the D&E method as
well. The law's other big flaw, Justice Stephen G. Breyer wrote for
the court, was that it lacked an exemption that would allow the
D&X procedure if a doctor concluded it was the best way to
preserve a woman's health.
Joining Breyer were Justices
John Paul Stevens, Sandra Day O'Connor, David H. Souter, and Ruth
Bader Ginsburg. O'Connor, who supplied the critical fifth vote,
suggested in a concurring opinion that states can ban some
partial-birth abortions. "A ban on partial-birth abortion that only
proscribed the D&X method of abortion and that included an
exception to preserve the life and health of the mother would be
constitutional in my view," she said. Forsythe, the anti-abortion
advocate, called O'Connor's words "an illusion, a national hoax."
The court's dissenters -- Chief Justice William H. Rehnquist and
Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas --
appeared to agree that the 29 other states may not be able to come
up with easy remedies.
Writing for himself,
Rehnquist and Scalia, Thomas said, "Today we are told (by the
majority) that 30 states are prohibited from banning one rarely used
form of abortion that they believe to border on infanticide." And
Kennedy, a co-author of the 1992 ruling that upheld abortion rights,
wrote in a dissenting opinion: "Justice O'Connor assures the people
of Nebraska they are free to redraft the law . . . . The assurance
is meaningless." Ginsburg and Breyer joined the court after the 1992
decision. Wednesday's ruling was their first on abortion. The
procedure at issue in the Nebraska case is used for some abortions
close to the point of viability, when a fetus is able to live
outside the uterus. Past abortion rulings make clear that states can
take numerous steps to protect fetal life once viability occurs,
generally around the sixth month of pregnancy. Nebraska's law, along
with those in Arkansas and Iowa, was invalidated by a federal
appeals court last year. But another federal appeals court upheld
partial-birth abortion bans in Wisconsin and Illinois. An appeal of
that federal appeals court ruling still is pending before the
justices, and likely will be set aside and sent back for more study
when the court's clerk issues new orders from the justices Thursday.
The state's 1997 law was challenged by Dr. Leroy Carhart, one of
only three doctors in Nebraska known to perform abortions. Carhart
sat quietly in the ornate courtroom Wednesday and showed little
emotion as the decision was summarized from the bench. Later, he
said, "This is a victory for all Americans who believe that the
government must not be allowed to meddle in the private decisions
best left to women, their families, and their doctors.,"
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