SUPREME COURT TO HEAR ORAL ARGUMENTS IN NEBRASKA LAW BANNING PARTIAL-BIRTH ABORTIONS

By Dave Andrusko

Less than three weeks after the U.S. House of Representatives overwhelmingly passed a ban on partial-birth abortions, the Supreme Court will hear oral arguments in a challenge to the state of Nebraska's ban on the grotesque abortion "procedure."

As reported on page one, the 287-141 tally on HR 3660 was one more than the two-thirds vote needed to override President Clinton's promised veto. Although there also is a large majority in the Senate, when the Senate approved its version last October, the vote fell two votes short of a two-thirds majority.

However, there continues to be a strong popular opposition. In January, a CNN/USA Today/ Gallup poll found that 64% of the public favored a ban on partial-birth abortions.

In a partial-birth abortion, a living baby is delivered feet first, except for the head, in a manner similar to a breech birth. The abortionist then punctures the child's head with surgical scissors, sucks out her brains, and delivers a dead but largely intact baby.

In Stenberg v. Carhart, the Supreme Court will hear the most widely publicized abortion case since the 1992 Planned Parenthood v. Casey, which upheld the core of the 1973 Roe v. Wade decision. Stenberg v. Carhart involves a lawsuit brought by abortionist LeRoy Carhart, who successfully challenged Nebraska's ban on partial-birth abortion. Carhart prevailed at both the trial court and with the 8th Circuit Court of Appeals last September.

In the latter decision, a three-member panel held that the 1998 statute was unconstitutional because the statute's language would infringe on a different abortion technique, dilation and evacuation (D&E), in which the unborn baby is dismembered while within her mother.

But less than one month later, the full 7th U.S. Circuit Court upheld the partial-birth abortion bans of Wisconsin and Illinois. While the Illinois statute had been overturned by U.S. District Judge Charles Kocoras, U.S. District Judge John Shabaz upheld Wisconsin's law.

Wisconsin's statute had a thorough airing in court, and Judge Shabaz reviewed that record before rendering his decision. Shabaz concluded that the Wisconsin ban was not vague, it did not apply to abortion techniques that involved dismembering the baby inside the mother, and that the lack of a health exception was permissible because there were alternative abortion procedures available that were equally safe for women seeking abortion.

As the day scheduled for oral arguments (April 25) has drawn near, Carhart has had a media field day. For example, the lead paragraph of a widely distributed April 5 Associated Press story reported that Carhart's home was burned down nine years ago in a fire "apparently started by an abortion foe."

But in an article that no doubt received only one hundredth the publicity, the Omaha World-Herald reported on April 8 that Carhart had been interviewed by Jack Malicky, chief of investigations for the State Fire Marshal's Office, about the existence of a letter Carhart had said was sent to him by "anti- choice zealots" who claimed responsibility for the fire. Carhart told Malicky that he had lost the letter, according to the World- Herald. In any event, Carhart now said "his comments have been misinterpreted."

Defending Nebraska at the Supreme Court will be state Attorney General Don Stenberg. His comments cut through all the euphemisms and pro-abortion rhetoric: "It shocks the conscience that in the United States of America, a human child can be literally pulled from the womb and cruelly killed by having his or her skull punctured and brain suctioned out."