Nebraska AG Vows to Appeal Court Decision Striking Partial-Birth Abortion Bans

By Mary Spaulding Balch, Director
NRLC Department of State Legislation

Nebraska Attorney General Don Stenberg has vowed to appeal the ruling of a three-judge panel of the Eighth Circuit Court of Appeals to the United States Supreme Court.

The September 24 ruling held that Nebraska's law banning partial- birth abortions placed an "undue burden" on a woman seeking an abortion, and therefore was unconstitutional. On the same day the panel, in separate decisions, also held that Arkansas's and Iowa's partial-birth abortion bans were unconstitutional on the same grounds.

Writing for the panel in the Nebraska decision, Circuit Judge Richard S. Arnold said the law "would prohibit in many circumstances the most common method of second trimester abortions." Arnold was concerned that the laws banning partial- birth abortion, which are described in the three state laws as " partially vaginally delivering a living fetus before taking the life of the fetus and completing the delivery," would also ban the "D&E" abortion technique as well as suction-curettage abortion. Judge Arnold based this conclusion on the testimony of abortionists at the trial.

[Some, such as LeRoy Carhart, indicated that during an abortion in which the baby is dismembered piece by piece, the child is often still alive inside the mother. See "Testimony of abortionist LeRoy Carhart," side bar, this page.]

The customary definition of "D&E" is of an abortion technique in which forceps with sharp metal jaws are used to grasp body parts of the unborn child which are then twisted and torn away.

Arnold described the D&E abortion in the Arkansas decision as follows:

"In a D&E procedure, the physician inserts forceps into the uterus, grasps a part of the fetus, commonly an arm or a leg, and draws that part out of the uterus into the vagina. Using the traction created between the mouth of the cervix and the pull of theforceps, the physician dismembers the fetal part which has been brought into the vagina, and removes it from the woman's body. The rest of the fetus remains in the uterus while dismemberment occurs, and is often still living [which he footnoted as meaning, "A fetus is considered alive if it has a beating heart."]. Arnold posed the question of whether a law banning partial-birth abortions where "all of the fetus except for the head" was delivered before killing the baby would pass constitutional muster, but declined to express any view on such wording since that question wasn't before the panel.

In striking down the Iowa law, Judge Arnold held that the same reasoning used in the two other decisions applied to the Iowa act.

"By barring a procedure which involves bringing a 'substantial portion' of a living fetus into the vagina, for the purpose of killing the fetus, the Act bars more than just the D&X procedure," he wrote. "It bars the D&E procedure, and, in some circumstances, the suction-curettage procedure as well."

[The term "D&X" means "dilation and extraction."This term was coined by Ohio abortionist Dr. Martin Haskell to refer to his method of partial-birth abortion, which involves delivering a live baby feet-first, all except for the head, and stabbing her through the base of the skull with a long surgical scissors.]

Judge Arnold concluded, "Simply intending to deliver a part of the fetus into the vagina, as part of the abortion procedure, while the fetus is still intact and living, is enough." Nebraska officials vowed to ask the U.S. Supreme Court to reverse the Eighth Circuit's ruling. "The next logical step in the fight to stop the use of this procedure is an appeal to the U.S. Supreme Court," Gov. Mike Johanns said. "The American people, including a vast majority of Nebraskans and many people who consider themselves pro-choice, support a ban on partial-birth abortions."

The Iowa and Arkansas Offices of the Attorney General are still reviewing the decision.

Twenty-seven states have banned partial-birth abortions since 1996. Seven of those - - South Dakota, Mississippi, South Carolina, Indiana, Tennessee, Oklahoma, and North Dakota - - have not been challenged and are in effect.

Virginia's partial-birth abortion ban was declared unconstitutional by a trial judge, but the Fourth Circuit Court of Appeals lifted an injunction against enforcement pending the appeal.

The remaining 19 are enjoined pending litigation. Appeals are pending in the 1st, 3rd, 4th, 5th, 6th, and 7th Circuit Courts of Appeal.

Testimony of Abortionist LeRoy Carhart

Editor's note. The following excerpt is taken from Nebraska Life, the state newsletter of Nebraska RTL. LeRoy Carhart testified July 17, 1997, in a federal district courtroom in a challenge to the state's ban on partial-birth abortions. What he said has to be read to be believed. ["Question" refers to one of the lawyers challenging the law.]

Question: At what point is the fetus...does the fetus die during that process?
Carhart: I don't really know. I know that the fetus is alive during the process most of the time because I can see fetal heartbeat on the ultrasound.

The Court: Counsel, for what it's worth, it still is unclear to me with regard to the intact D&E when fetal demise occurs.

Question: Okay, I will try to clarify that. In the procedure of an intact D&E where you would start foot first, with the situation where the fetus is presented feet first, tell me how you are able to get the feet out first.
Carhart: Under ultrasound, you can see the extremities. You know what is what. You know what the foot is, you know what the arm is, you know what the skull is. By grabbing the feet and pulling down on it or by grabbing a knee and pulling down on it, usually you can get one leg out, get the other leg out and bring the fetus out. I don't know where this...all the controversy about rotating the fetus come from. I don't attempt to do that. I just attempt to bring down what ever is the most proximal portion of the fetus.

Question: At the time that you bring out the feet in this example, is the fetus still alive?
Carhart: Yes.