High Court Hears Abortion Arguments

For the first time in eight years, the nation’s highest court heard arguments on the constitutionality of a law regulating abortion Tuesday—a Nebraska measure prohibiting the use of a particular method of late-term abortion.

CBS News Correspondent Jim Stewart reports that the last time the Court visited the abortion issue, in 1992, it ruled that states can not put what it called an "undue burden" on women seeking abortions.

However, the justices didn't define exactly what that meant, and the current case may force them to.

Doctors call the late term abortion method in question—which opponents have labeled "partial-birth abortion"—dilation and extraction, or D&X, because it involves partially extracting a fetus, legs first, through the birth canal, cutting the skull and draining its contents.

Letting states ban the surgical procedure would affect only "a little-used form of abortion that borders on infanticide," Nebraska Attorney General Don Stenberg argued.

Nebraska seeks reinstatement of a law, similar to those in 30 other states, making it a crime for doctors to perform such abortions.

But Simon Heller, the lawyer representing a Nebraska doctor, said the state law is "so broadly written it could prohibit most second-trimester abortions" and could lead to making all abortions "more dangerous for women."

Six justices appeared skeptical of the Nebraska law.

Questions and comments from two key justices—Sandra Day O'Connor and Anthony M. Kennedy—voiced concern about the Nebraska law's sweep.

O'Connor wondered, "(Is) there no exception...for the health of the woman?"

Justices David H. Souter and John Paul Stevens also seemed to doubt the law's constitutionality, as did the two justices who joined the Court after its 1992 ruling—Ruth Bader Ginsburg and Stephen G. Breyer.

"This law seems out of the bounds that this Court has set for pre-viability regulation," said Ginsburg.

Of the three remaining dissenters from the 1992 decision to uphold the 1973 Roe v. Wade ruling—Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas—Scalia was by far the most animated Tuesday.

"The state could have been concerned about rendering society callous to infanticide ... the horror of seeing a live human creature outside the womb dismembered. Can't that be a valid societal interest?" Scalia asked.

The Court's decision is expected by late June, but the issue already has played a role in presidential politics.

The Clinton administration is asking the Court to strike down Nebraska's law. The president twice vetoed similar federal bans enacted by Congress.

In this year's presidential race, Democrat Al Gore opposes bans on such late term abortions, but Republican George W. Bush supports them.

While the procedure at hand affects a mere 130,000 of the 1.4 million aortions performed each year, activists on both sides of the issue believe the Court’s ruling on this case will have wider implications.

"I'm hoping this is the first brick to come down in the wall of a women's right to choose to murder her offspring," said Honey Burke, a mother of three who came with her husband from San Diego for the Court hearing.

Patricia Ireland of the National Organization for Women, said that's what pro-abortion rights groups fear.

"Essentially, it's a strategy by anti-abortion-rights people to end all abortions," Ireland said. "They use the political term 'partial birth abortion' rather than a medical term that would be more precise, precisely because they're going after other procedures."

Opponents don't argue with that assessment.

"If the Court will say that some kinds of abortion are so outrageous that you can outlaw them, then it sends a message that abortion isn't a right, you can restrict it," said Joseph M. Scheidler, Pro-Life Action League director. "It would indicate the Court has at least some concept of a victim, not only the woman."

In unanimously striking down the Nebraska law, the 8th U.S. Circuit Court of Appeals said the law's wording could also outlaw a more common procedure called dilation and evacuation, or D&E.

The case is Stenberg vs. Carhart.