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Document 161 of 609.

June 29, 2000, Thursday

SECTION: NEWS, Pg. 1A

LENGTH: 1267 words

HEADLINE: JUSTICES HIT THE HOT BUTTONS - PART 1 OF 3 ABORTION: BAN ON 'PARTIAL- BIRTH' METHOD REJECTED

BYLINE: Jonathan Riskind and Catherine Candisky, Dispatch Staff Reporters

DATELINE: WASHINGTON -

BODY:

In a ruling sure to reverberate in the Ohio Statehouse and on the presidential campaign trail, a divided U.S. Supreme Court yesterday struck down a Nebraska ban on so-called "partial- birth'' abortion.

Presidential candidates George W. Bush and Al Gore, both campaigning in Ohio yesterday, used the decision to push the abortion issue to center stage. Bush supports the ban; Gore opposes it.

With the next president likely to appoint at least two justices to the court, the 5-4 decision puts the future of abortion rights in question.

In its most significant abortion decision in eight years, the court said laws banning the late-term procedure violate the U.S. Constitution by placing "an undue burden upon a woman's right to make an abortion decision.'' But dissenting justices called the decision wrongheaded, warning that it jeopardizes similar bans in Ohio and 28 other states. The Ohio law is set to take effect in August.

"Today we are told that 30 states are prohibited from banning one rarely used form of abortion that they believe to border on infanticide,'' Justice Clarence Thomas said in a bitter dissent. "The Constitution does not compel this result.''

Abortion-rights advocates applauded the ruling, saying the court had rejected a back-door attempt to outlaw more common methods of abortion under the guise of blocking one procedure. Proponents of the ban maintained that the court essentially had sanctioned infanticide.

Both sides noted that with such a slim majority prevailing, the next president might appoint justices who could either strengthen or overturn the ruling. He also could be faced with deciding whether to sign similar federal legislation.

"One extra vote on the other side of the issue would change the outcome, and a woman's right to choose would be taken away,'' Gore said in Columbus.

"Not only will the American people decide the future of the legislative branch . . . and the next president . . . the presidential election will also decide the future of the Supreme Court.''

At an Ohio Republican Party fund-raiser in Cleveland, Bush said that states "should have the right to enact reasonable laws and restrictions, particularly to end the inhumane practice of ending a life that otherwise could live.

"I hope and expect we can come up with a law that meets constitutional muster, and, unlike Al Gore, I pledge to fight for a ban on partial-birth abortions. The people of America want somebody to take a stand on principle.''

Both the U.S. House and Senate have approved partial-birth abortion bills. But the federal legislation has never become law because the Senate lacks the votes to override a presidential veto.

Abortion-rights opponents vowed to make the partial-birth abortion issue prominent in the fall. Most Americans, they say, abhor the procedure.

"This really shows how out of touch the court is with the American people, '' said Mark Lally, legislative counsel for Ohio Right to Life. "There shouldn't really be anybody saying the Constitution of the United States supports this kind of brutality. What this decision really says is that we need a pro-life president who is more in tune with the public.''

But the Center for Reproductive Law and Policy said the political issue centers on "deceptive and extreme campaigns . . . waged to overturn the right to choose'' to have a legal abortion. The Washington-based center represented Dr. Leroy Carhart, the Nebraska physician who challenged his state's law.

Partial-birth abortion is not a medical term. The procedure banned by the Nebraska law is called dilation and extraction; it involves partially pulling a live fetus from the birth canal legs first, piercing the skull and draining its contents to ease its passage through the birth canal.

"This ruling seems to imply that Ohio's law will fall,'' said Shari L. Zalmon, executive director of the National Abortion Rights Action League of Ohio. "We have always maintained that such bans are deceptive, extreme and unconstitutional, as they generally lack a defined exception to protect a woman's health and could ban a number of safe abortion procedures, including some used in early stages of pregnancy.''

But Gov. Bob Taft yesterday vowed to fight challenges to Ohio's law, spokesman Scott Milburn said.

Ohio lawmakers first tried to ban the procedure in 1995, but that law was struck down by federal courts, and the U.S. Supreme Court refused to consider the state's appeal.

Chris Davey, spokesman for Ohio Attorney General Betty D. Montgomery, said Ohio's new law appears to be on firm constitutional ground because it bans only dilation and extraction and includes an exception to preserve the life and health of the mother -- two provisions lacking in the Nebraska law and both cited as concerns in the ruling.

The Nebraska law defines partial-birth abortion as "an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery.''

But the court ruled that that law was so broadly written it could be interpreted to ban a more common procedure called dilation and evacuation, in which the arm or leg of a live fetus may be pulled from the birth canal during an abortion.

The majority opinion also said the Nebraska law improperly failed to grant an exception allowing the banned procedure when a woman's life or health is at stake. A third problem, the court said, is that the law effectively restricts abortions both before and after a fetus is judged medically viable - - or able to live outside the womb.

The court eight years ago upheld by a 5-4 vote the constitutional right to an abortion but said states can restrict abortions after a fetus is viable if they grant life and health exceptions for women. The court ruled that the Nebraska law fails to meet that test.

The Nebraska law could allow criminal prosecution of physicians who also employ the more common dilation-and-evacuation procedure for pre-viability second-trimester abortions, Justice Stephen G. Breyer wrote for the court majority.

"All those who perform abortion procedures using that method must fear prosecution, conviction and imprisonment,'' he wrote. "The result is an undue burden upon a woman's right to make an abortion decision.''

Siding with Breyer were Justices John Paul Stevens, Sandra Day O'Connor, David H. Souter and Ruth Bader Ginsburg.

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Along with Thomas, Chief Justice William H. Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy formed the minority.

In his dissent, Kennedy said that Nebraska's law falls within the constitutional boundaries of what a state can do to restrict certain abortions.

"When the court reaffirmed the essential holding of Roe (vs. Wade), a central premise was that the states retain a critical and legitimate role in legislating on the subject of abortion, as limited by the woman's right the court restated and again guaranteed,'' said Kennedy, referring to the 1992 ruling. "The court's decision today, in my submission, repudiates this understanding by invalidating a statute advancing critical state interests, even though the law denies no woman the right to choose an abortion and places no undue burden upon the right.''

Thomas said the court had improperly failed to uphold a law banning an abortion procedure "so gruesome that its use can be traumatic even for the physicians and medical staff who perform it.''

Dispatch Staff Reporters Joe Hallett, Alan Johnson and Roger K. Lowe contributed to this story.

GRAPHIC: Map, Phot, (1) Map (2) Justice Clarence Thomas, in an unusual move, read a bitter dissent from the bench.

LOAD-DATE: June 29, 2000

Document 161 of 609.


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