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Justices weigh abortion limits

Court that has avoided sweeping abortion rulings today tackles one of America's thorniest debates.

By Staff writer of The Christian Science Monitor / April 25, 2000



WASHINGTON

In a US Supreme Court term loaded with potential blockbuster cases, today the court takes up one of the most contentious debates in America: abortion.

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It is the one issue in this presidential-election year that has sparked the most concern about future appointments of Supreme Court justices. And the issue is one that clearly separates the two major candidates for president, with Al Gore supporting a woman's right to choose abortion and George W. Bush opposed to legalized abortion except in certain rare cases.

For a court that has shied away from any sweeping new decisions on abortion, the case is a test of whether the justices are willing to grant states broader authority over abortion.

At issue before the court is a case that will decide whether states may outlaw a controversial medical procedure that opponents call partial-birth abortion.

Specifically, the court is examining a Nebraska law that bars physicians in the state from performing a rare, late-term procedure that involves extracting most of the fetus into the birth canal before killing it. Abortion opponents, who favor the law, say such abortions are gruesome, unnecessary, and that they are "disturbingly close to infanticide."

Supporters of abortion rights say attempts to outlaw the procedure are part of a coordinated national crusade by abortion opponents. These opponents want to bypass Supreme Court precedents, they say, and sharply restrict the constitutional right of women to choose the safest abortion method.

"The [Nebraska] act is a deceptive maneuver in the campaign to erode women's right to choose abortion," says Simon Heller in a brief filed by the Center for Reproductive Law and Policy in support of a Nebraska abortion doctor, LeRoy Carhart, who's challenging the law.

Nebraska attorney general Don Stenberg counters that Nebraska's law and similar laws passed by 29 other states and Congress represent a broad-based response to a procedure "widely viewed as outside acceptable medical practice."

Some friend-of-the-court briefs ask the justices to overturn the 1973 Roe v. Wade precedent, which recognized a constitutional right to abortion. But analysts say the case will likely be decided on narrower grounds.

Nonetheless, abortion-rights proponents say if the court upholds the Nebraska law it could trigger a nationwide push for similar laws and subject other late-term abortion procedures to legal challenge.

"People thought [the bans] were just trying to ban a single procedure used later in a pregnancy," says Vicki Saporta of the National Abortion Federation. "But we are talking about [restricting] most abortion procedures used throughout pregnancy, which is why this is an extraordinarily important court case."

Lawmakers in 30 states have banned so-called partial-birth abortions, but legal challenges have blocked implementation of the bans in 18 states. At least two federal appeals courts have examined the issue and come down on different sides of the question.

The Supreme Court decision could mark a major turning point in abortion rights, analysts say. In addition to the ban on so-called partial-birth abortion, anti-abortion activists are hoping to convince a majority of justices that they should adopt a new standard to expand state regulation of abortion.

Currently, according to Roe v. Wade, states cannot ban abortions that take place before the fetus is "viable," the time at which it can survive outside the womb. Abortion opponents are hoping to establish a new standard that would allow states to regulate abortions when a substantial portion of the fetus is removed from the womb.

At that point, proponents of the new standard argue, the issue becomes a partial-birth, not an abortion, and the rights of the fetus may override the rights of a woman to end her pregnancy.

If the court rejects this interpretation, these proponents say, it will mark an expansion of abortion rights to include the right to kill a fetus during the process of what they call birth.

"Location matters," says James Bopp, who filed a brief on behalf of the National Right to Life Committee. "The right to an abortion arises because the child is inside the mother. But now we have a child that is but inches away from being outside...."

But Ms. Saporta says the court has emphasized viability rather than the exact location of the fetus as the crucial factor.

Abortion-rights supporters say the so-called partial-birth abortion bans are intentionally written in broad and vague language to expand state regulation of abortion over a wide range of abortion procedures.

(c) Copyright 2000. The Christian Science Publishing Society