U.S.

Narrow Win For Abortion Rights

By CBSNews.com staff CBSNews.com staff

June 26, 2000 / 9:45 AM EDT / CBS

Abortion rights advocates have won a double victory at the U.S. Supreme Court, with a ruling striking down a law to ban late term abortions and a decision upholding a law which places restrictions on protests at abortion clinics.

In the most widely awaited ruling, the Supreme Court voted 5-4 to strike down a Nebraska state law which had banned late term abortions, the procedures which opponents call "partial birth" abortions, reports CBS News Correspondent Jim Stewart.

Analysis

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CBSNews.com Legal Consultant Andrew Cohen takes an ideological and legal look at the U.S. Supreme Court and the decisions it made during its most recent term.

In another case, the court voted 6 to 3 to uphold a Colorado law which required abortion protesters to stay at least 8 feet away from anyone entering or leaving a medical facility.

Justice Antonin Scalia issued a scathingly bitter dissent, writing, "(This) method of killing a human child..... is so horrible that even the most clinical description of it evokes a shudder of revulsion. Today's decision will be greeted by a firestorm of criticism -- as well it should be."

It was the court's first look at a woman's right to an abortion in eight years. At issue was a law passed by 30 states prohibiting late pregnancy abortions, using a procedure in which a doctor withdraws the lower body of a fetus before puncturing the skull, thus allowing the rest of the fetus to be pulled away.

Outlawing such procedures places an "undue burden" on women, wrote Justice Stephen Breyer. "This court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose."

But in a presidential election year with the two assumed candidates directly opposed on the issue, the question now is for how much longer?

The next president will have three or four appointments to the court.

Scotus Term Winds Up

In other Supreme Court action Wednesday, the justices supported the Boy Scouts of America in their ban on homosexuals as scoutmasters.

The high court, in another closely-watched ruling, issued a 6 to 3 decision in favor of using taxpayer funds to buy computers and other classroom materials for religious schools. The decision should speed federal efforts to connect every American classroom to the Internet.

The ruling is a big victory for proponents of using public money for tuition aid to families who send their children to religious schools. Politically-charged legal fights over tuition vouchers are being waged in numerous lower courts.

Wednesday's batch of rulings marks the end of the Court's term with the justices scattering for the summer to travel, teach and lecture, but there still will be decisions coming out during July - so-called "overflow" decisions to tie up loose ends before the new term starts in October.

The decision had been anticipated as one which could have far-reaching implications for future legal debate and rulings in the controversy over abortion rights.

CBS News Legal Consultant Andrew Cohen says the ruling is a "significant victory for the abortion rights movement" and may "spell doom for similar statutes - already enacted and planned - around the country."

Some 30 states have nearly identical anti-abortion rights laws, and President Clinton has twice vetoed a similar federal ban approved by the Republican-controlled Congress.

The ruling, the court's most important word on abortion in eight years, did not appear to immediately affect the similar laws in other states. But their supporters are likely to have a harder time defending them in lower courts.

Doctors call the late term abortion method in question 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.

A more common procedure is dilation and evacuation, or "D&E," in which an arm or leg of a live fetus may be pulled into the birth canal during the operation.

The court said the Nebraska law, which state Attorney General Don Stenberg said is aimed only at the D&X method, could have criminalized the D&E method as well.

"Using this law, some present prosecutors and future attorneys general may choose to pursue physicians who use D&E procedures, the most commonly used method for performing...second-trimester abortions," Justice Stephen G. Breyer wrote for the court.

"All those who perform abortion procedures using that method must fear prosecution, conviction and imprisonment. The result is an unduburden upon a woman's right to make an abortion decision," Breyer said. "We must consequently find the statute unconstitutional."

The Nebraska law made it a crime if someone performing an abortion "partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery."

The Nebraska law also did not allow late term abortions even if doctors considered that method the best way to guard a woman's health.

The reaction was immediate and emotional.

"Hooray! That is very good news for the women of Nebraska and the women of America," commented Steven Emmert, president and CEO of Planned Parenthood of Omaha-Council Bluffs. "It also is an indication to all of us of how the whole Roe vs. Wade decision hangs in the balance by just one vote - yet again."

Janet Benshoof, one of Carhart's lawyers and president of the Center for Reproductive Law & Policy, also applauds the Supreme Court ruling.

In an interview with CBS News, Benshoof said she doubts the ruling will end the attack on abortion rights. "The 5 to 4 vote shows how fragile the right to choose is.

"It does confirm what we have been saying all along - that this is a deceptive attack on Roe itself. It reaffirms the right of women to make the fundamental choices to protect their health," said Benshoof.

On the other side of the debate, there is profound disappointment that the law has gone down to defeat.

"The Supreme Court of the United States chose not to listen to the people of the United States," said Bob Blank, president of Metro Right to Life, an Omaha-based anti-abortion rights group.

"My concern is that this simply leaves it up to Dr. Leroy Carhart (the doctor in the case in question) or any other abortionist to write the law for the state of Nebraska," said Nebraska attorney general Don Stenberg. "I was encouraged by the fact the four dissents repeatedly made reference to the arguments we had made," added Stenberg, who defended the ban before the high court last month and is now running for the U.S. Senate.

Nebraska's Democratic candidate for the U.S. Senate, Ben Nelson, agrees with his GOP opponent on this issue. "I am pro-life and as governor I signed the bill into law. I abhor the procedure and hope the Legislature will go back and make the changes needed to make the ban work in Nebraska."

Julie Schmit-Albin, executive director of Nebraska Right to Life, expresses the hope that the question might make its way to the Supreme Court again in the future. "The court must revisit this issue. A majority of Americans abhor partial birth abortion and they know in their hearts that infanticide cannot stand. It's shameful that Dr. Leroy Carhart will be able to continue this grisly practice unfettered."