Justices hear abortion case

Arguments before high court focus on law banning midterm procedure

November 09, 2006|By David G. Savage | David G. Savage,LOS ANGELES TIMES

WASHINGTON -- A Bush administration lawyer urged the Supreme Court yesterday to uphold the nation's first criminal ban on an abortion method, saying so-called "partial birth" abortions are "too close to infanticide" and not a medical necessity.

"Safe alternatives are always available," U.S. Solicitor General Paul D. Clement said in defending a law passed by Congress in 2003.

But two abortion-rights advocates argued that the ban, if put into effect, would unwisely limit the options of doctors who perform abortions in the second trimester and would expose some pregnant women to more dangerous surgery.

These doctors believe that the procedure medically known as dilation and extraction or D&X - in which the fetus is removed intact - "reduces the risk of serious complications," including bleeding and infection in the uterus, said Priscilla Smith, a lawyer for the Center for Reproductive Rights in New York.

"What Congress has done here is take away from women the option of what may be the safest procedure" for some of them, said Eve Gartner, a lawyer for the Planned Parenthood Federation of America.

The oral arguments heard yesterday could prove a turning point for the Supreme Court on abortion. With the arrival of President Bush's two conservative appointees, there appears to be a five-vote majority to uphold stricter regulation of abortion, including Justice Anthony M. Kennedy.

Six years ago when the court struck down a Nebraska ban on the practice, Kennedy wrote an impassioned dissent, describing D&X abortions as "abhorrent."

Now, abortion-rights advocates are hoping he will switch sides.

But yesterday, Kennedy said most midterm abortions appear to be "purely elective" and described the disputed procedure as "not medically necessary."

New Justice Samuel A. Alito Jr. said nothing during the argument. But he and Chief Justice John G. Roberts Jr. have been counted as likely to uphold the federal Partial Birth Abortion Ban Act.

The measure was a proud achievement of President Bush and the Republican-controlled Congress. By coincidence, it came before the court on the day after the GOP lost control of Congress and one of the ban's primary sponsors, Sen. Rick Santorum, a Pennsylvania Republican, lost.

Separately, voters in South Dakota rejected a law that would have made all abortions illegal, while voters in California turned down a parental notification measure.

Even if the Supreme Court were to put into effect the new ban on midterm abortions, its influence would be limited. The disputed procedure is used only for abortions that take place after the 16th week of pregnancy. Doctors partially extract the fetus from the uterus and collapse its skull before pulling it out.

Most of the two-hour argument was devoted to a back-and-forth debate about the scope of the law that bans the midterm procedures.

Clement sought to minimize its effect. He described the D&X method as a "very aberrant, atypical procedure" that is not used by most abortion doctors. The ban would affect "a small minority of second trimester abortions," he said.

Most doctors use the "dilation and evacuation" method, or D&E, in which the fetus is dismembered in the uterus before it is removed. Clement referred to this as the "gold standard" for midterm abortions.

Moreover, doctors who plan to remove the fetus intact could inject it with a drug beforehand that would stop its heart, he said. If the doctor "induces fetal demise at the outset," the law is not violated, he said, because the fetus will emerge dead.

This could give doctors a way to shield themselves from the potential effect of the new law. However, some medical experts say these injections pose too great a risk that the woman could be exposed to a deadly chemical.

Even if the law is upheld in principle, Clement said, doctors could go to court and ask for an exception that "focuses on particular medical conditions" that call for the D&X procedure.

Several liberal justices objected to talk of "infanticide." They stressed that second trimester abortions involve fetuses who could not live on their own.

The two abortion-rights advocates sought to portray the law's reach as broad. They stressed the law does not use medical terms, such as D&X or D&E.

David G. Savage writes for the Los Angeles Times.

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