Nebraska Defends Partial-Birth Abortion Ban in Supreme Court

By Richard E. Coleson, Esq.

On April 25, Nebraska Attorney General Don Stenberg defended his state's partial-birth abortion ban in oral arguments presented before the U.S. Supreme Court. Simon Heller, of the New York City-based Center for Reproductive Law and Policy, argued for abortionist Leroy Carhart in the case known as Stenberg v. Carhart.

Heller had twice succeeded in getting the ban declared unconstitutional, first in the federal district court and then by the Eighth U.S. Court of Appeals. Now, the highest court in the land will determine whether a state can ban a procedure most consider more like infanticide than abortion. (See also page 2.)

Supreme Court proceedings are steeped in tradition, rich in secular pageantry, and intentionally designed to add an air of solemnity to the proceedings. When Stenberg and Heller and their respective colleagues entered the courtroom, they did through massive columns that surround the inner chamber of a building patterned after a Greek temple.

In light of the many pro-abortion Supreme Court decisions, pro-lifers could not miss the irony of the motto carved in the building's classic facade: "Equal Justice under Law." Inside, the courtroom walls are topped with carvings of legal notables, including Moses and the Ten Commandments he brought down from Mt. Sinai. Part of the Decalogue is, of course, "Thou Shalt Not Kill."

As counsels moved to their respective tables, they sat on either side of a central lectern just in front of the imposing judicial bench. On each table the Court had provided the traditional white quill, a trophy collected by those who argue before the Court.

With Stenberg was Nebraska Deputy Attorney General L. Steven Grasz and co-counsel James Bopp, Jr., general counsel for NRLC. Bopp played a major role in preparing the case.

He chaired a briefing coordination conference for organizations planning to file friend-of-the-court briefs, assisted Stenberg in preparing for oral arguments, and advised Stenberg on Nebraska's briefs.

In addition Bopp and members of his law firm also authored three friend-of-the-court briefs in the case. One brief was filed by National Right to Life and was joined by the Christian Legal Society, Concerned Women for America, the Southern Center for Law and Ethics, and Focus on the Family. A second brief, funded by the National Right to Life Educational Trust Fund, was filed on behalf of Congressman Charles Canady (R-Fl.) and other members of Congress. The final brief, filed on behalf of West Virginia's Governor Cecil Underwood and several officials of other states, encouraged the Supreme Court to accept the case.

As 10:00 a.m. approached, the buzzing of spectators and reporters abated. A gavel pounded for attention, and nine black-robed justices appeared through red curtains behind the bench.

The clerk intoned the traditional formula beginning with the Latin "Oyez, oyez, oyez! [Hear ye]" and concluding with "God save the United States and this Honorable Court." After preliminaries, Chief Justice William Rehnquist called on Stenberg, who had 30 minutes to defend Nebraska's law.

Stenberg, appearing before the Court for the third time, began by asserting that Roe v. Wade recognized "no absolute right to terminate a pregnancy at whatever time, in whatever way, and for whatever reasons a woman chooses."

"[T]he issue here today," he continued, "is whether a State may prohibit a little-used form of abortion that borders on infanticide when safe, alternative forms of abortion remain available to women seeking abortions."

He was promptly interrupted by Justice Ruth Bader Ginsburg, and the questioning began. It focused on the issues the Court had decided to accept for review: (1) does Nebraska's ban apply only to the intact dilation and extraction procedure (abbreviated "D&X" - - i.e., partial-birth abortion) ; and (2) does this ban impose an "undue burden" on the abortion right? ("Undue burden" was the standard which the Court announced in its 1992 Planned Parenthood v. Casey case.)

What this means is that if Nebraska's ban cannot reasonably be construed to ban only the intact dilation and extraction abortion procedure, it would be declared to be an "undue burden" on a woman's "right" to abortion because it would ban the most widespread technique used after the first trimester-dilation and evacuation (D&E).

There is a second way Nebraska's law could be construed to impose an "undue burden": if it fails to advance a cognizable state interest in the unborn child prior to viability and for failing to provide a "health" exception.

In the Casey decision, four justices voted to reverse Roe and another two voted to reaffirm the 1973 decision without change. Three justices in the "middle" (Sandra Day O'Connor, Anthony Kennedy, and David Souter) voted to reaffirm a right to abortion but purported to give more recognition to a state's interest in protecting fetal life with a newly enunciated "undue burden" test. Then, as now, these swing votes will control the outcome.

Question #1: Does Nebraska's law ban only intact dilation and extraction abortions? Stenberg told the justices that the state followed the 1997 federal model in banning "partial-birth abortion." The key language is that the abortion procedure banned consists of "deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child". . . "before . . .completing the delivery."

Stenberg and all the other attorneys general defending similar bans have construed this language to affect only abortionist Martin Haskell's procedure, which Haskell labeled "dilation and extraction" (D&X) to distinguish it from the "classic D&E." In a 1992 paper presented at an abortion conference, Haskell wrote that "[c]lassic D&E is accomplished by dismembering the fetus inside the uterus . . . and removing the pieces."

By contrast Haskell's new abortion procedure extracted the "nearly intact fetus" alive up to his/her head at which point the abortionist punctures the skull; suctions the brain, collapsing the head; and completes delivery of the now-dead child. Partial-birth abortion bans clearly target this procedure, and legislative history dating back to the first congressional hearing in 1995 confirms that intact dilation and extraction was the sole target.

However, in overturning Nebraska's ban, the Eighth U.S. Circuit Court of Appeals isolated the phrase "substantial portion," deciding that a fetal limb would constitute a substantial portion.

The appeals court held that the ban, therefore, also included the D&E procedure. Because D&E is the most common abortion procedure used after the first trimester, the Eighth Circuit held that Nebraska's ban imposed an "undue burden" on the abortion right.

At the oral argument, Rehnquist noted that federal courts should afford some deference to reasonable constructions offered by attorneys general. Applying these principles, the High Court could hold that the ban only applies to intact dilation and extraction procedures. Other courts, however, have avoided addressing the merits of partial-birth bans by constructing them as too vague or too broad-exactly what Carhart is arguing.

Justice O'Connor commented that "it is difficult to read the statute and be certain that" it does not reach D&E abortions. "They're both rather gruesome procedures," she continued, "but in fact one may be very similar to the other, and I'm not certain whether the statute might not prohibit the D&E procedure as well."

Justice Antonin Scalia was very active in resisting the efforts of Carhart's attorney, Simon Heller, to conflate D&E and intact dilation and extraction. After Heller evaded numerous probing questions on the distinction between the two abortion procedures, an exasperated Scalia declared that "[p]eople talk about D&X. We've been talking about it today as though it is something distinctive. It is."

Heller admitted it was, but refused to acknowledge Scalia's next point-that the "distinctive procedure is . . . generally called partial-birth abortion."

But that refusal was disingenuous in light of the statements by the American Medical Association (AMA) and the American College of Obstetricans and Gynecologists (ACOG) that equate partial-birth abortion with D&X. Justice Kennedy, noting that Heller conflated D&X and D&E, asked if the AMA was "just confused on this point."

Last year, the Seventh U.S. Circuit Court of Appeals upheld Wisconsin's and Illinois's bans on partial-birth abortion because it understood that these state laws banned only the intact dilation and extraction abortion procedure.

Likewise, in allowing Virginia's ban, which has similar language, to remain in effect while under challenge, the Fourth U.S. Circuit Court of Appeals also said it was reasonable to conclude the ban applied only to intact dilation and extraction.

Question #2: Would a ban on intact dilation and extraction procedures constitute an "undue burden" on a woman's "right to abortion"? This raises two other key issues.

First, does Nebraska have an interest that justifies its ban of an abortion procedure before fetal viability?

"Viability" was significant in Roe and Casey. The Court recognized two state interests in the abortion context: protecting maternal health and preserving "potential life." The Court held that the interest in fetal life became "compelling" at viability, when states could ban abortion with maternal life and health exceptions.

[Fetal "viability" begins at about 23 weeks. However, obstetricians and perinatologists confirm that even during the 20-to 23-week range, if a baby is expelled or extracted completely from the womb, he or she will often breathe and have a heartbeat for hours, even though lung development is usually insufficient to permit successful sustained life until 23-24 weeks. Thus, the victim of a partial-birth abortion is indeed only "inches from her first breath" when the surgical scissors penetrates her skull.]

Carhart's attorney, Simon Heller, had asserted in his briefs that a state could not ban an abortion procedure before viability. Stenberg had countered that because a child who is born before viability is protected by homicide laws, it was the location of the child, not the stage of development, that was crucial where birth is involved. Because the partially born child had substantially crossed the line of legal protection, Stenberg concluded, the child should likewise be the subject of state protection even if he/she is previable.

When Stenberg began his oral arguments, he said that the state's interest was to "draw a bright line between abortion and infanticide." This drew the immediate ire of Justice Ginsburg, who asked how the procedure could "border... on infanticide" when abortionist Carhart said he performed no post-viability abortions. Justice John Paul Stevens asserted that viability was a "bright line."

At that point Justice Scalia joined the debate. "I took it that what you meant when you said it bordered on infanticide had nothing to do with the viability of the fetus, but that the procedure looks more like infanticide when the child is killed outside the womb than when it is killed inside the womb, and therefore it can coarsen public perception to other forms of killing fetuses or children outside the womb. Is that not what the legislature was concerned about?" Stenberg responded that this was "precisely the point."

Heller argued that the ban promoted neither the maternal health nor the fetal life interest, so it must be struck down on that basis. He alluded to other interests asserted by Stenberg, but insisted that no state interest "is sufficient to override the woman's health."

Justice Scalia countered that surely the state had an overriding interest where "there is an insignificant difference between. using D&X and ... D&E," in preventing the "the destruction of a live human creature outside the womb."

Justice Scalia later returned to the state's interest. He argued that there was a cognizable interest in not "rendering society callous to infanticide," noting that "many highly civilized societies... permitted infanticide." To prevent "societies descending into that degree of callousness," he added, "States have enacted these laws." He concluded, "I think it's a concern with the horror of seeing ... a live human creature outside the womb dismembered."

A second key issue question #2 raises is whether an exception for "health" is required in a ban on partial-birth abortions when standard alternative abortion techniques remain available?

Justice O'Connor asked about testimony alleging that there were "circumstances in which the health of the woman required D&X versus D&E." Stenberg said that the AMA and ACOG had both concluded after study that there was no identifiable circumstance where a partial-birth abortion ­ which they equated with D&X ­ would be the only procedure available to protect the life or health of a woman. Stenberg called contrary trial testimony "speculation."

Justice Breyer noted that some friend-of-the-court briefs asserted that in "some circumstances... D&E is more risky." Stenberg responded that, where medical opinion is divided, a court should defer to the legislature as "the proper fact-finder." He reiterated that the AMA and ACOG had "specifically found that there are always alternatives available to a woman in need of abortion if there is a health concern."

Stenberg further argued that the Court's Casey test was whether there was an undue burden on the abortion right. He charged that Carhart and Heller were trying to change that to a no burden test.

Some burden on the abortion right had already been approved in Casey, Stenberg noted. The Court upheld a 24-hour waiting period even though the trial court had found that this would impose considerable burden on some women seeking abortions.

Justice Rehnquist asked Heller if there hadn't "been some criticism of the health exception" as "a way of simply avoiding the prohibition." Heller insisted there was no basis for that concern.

Justice Scalia asked whether the state could restrict abortion where there was a fully viable child with only "a minimal, virtually nonexistent health risk" to the mother. Heller asserted that the district court found "an appreciable health risk" from prohibiting the intact dilation and extraction abortion procedure. Scalia responded, "What if another district court makes a different finding?"

This allusion to the contrary findings of the district court in the Wisconsin case indicates that the questionable findings of fact determined by the trial court in the Nebraska case cannot fully decide the issue. While it is true that ACOG said that D&X "may" be better for some women in some situations than D&E, it failed to quantify that asserted difference. As some members of the High Court observed, a difference, if any, would be minimal and therefore not properly an undue burden.

What will the Court decide? Predictions are difficult, as usual, because sometimes justices, in their questioning, play devil's advocate.

Whether the arguments of Stenberg made in the courtroom and the thoughtful comments of Chief Justice Rehnquist and Justice Scalia on the bench will persuade O'Connor and Kennedy will be known around the end of June, when the Court concludes its current session and issues final opinions on pending cases.

Richard E. Coleson of the law firm of Bopp, Coleson & Bostrom, assisted Stenberg in preparing written and oral arguments in the case and was counsel of record for an amici curiae brief filed by U.S. Rep. Canady and other members of Congress.