No Final Word for States On Late-Term Abortions

Supreme Court's refusal this week to rule on an Ohio law leaves issue unsettled.

Around the country, more and more states are enacting bans on a controversial form of late-term abortion - the so-called "partial-birth" method. In the last two weeks alone, four more states have barred the procedure, bringing the total to at least 20.

But confusion reigns over whether this rare type of abortion - which involves partial delivery of the fetus before its demise - is constitutional.

This week, a majority of justices on the Supreme Court decided not to confront the issue, letting stand an appeals court ruling that found Ohio's partial-birth ban unconstitutional. But in refusing to hear the case, the high court did not pass judgment on the merits of the lower court's argument.

So all sides active on the issue - interest groups and legislators at both the state and federal levels - will keep fighting. And a nation already squeamish about this most unpleasant of medical procedures will continue to face a barrage of public discourse on it, likely intensifying as the fall elections approach.

"It was a little premature, since this is the first case [on partial-birth abortion] to have reached the Supreme Court," says Jay Sekulow, chief counsel for the American Center for Law and Justice, a conservative public-interest law group. "When the right case comes along - and it will - the justices will rule."

Striking down bans

Abortion-rights supporters are confident that the courts will continue to strike down bans on partial-birth abortion, as they have done almost without exception. In recent months a judge in Georgia held that state's ban constitutional, but only in cases where the fetus could survive outside the womb. So far, no appeal has been filed on that ruling.

But even if abortion-rights advocates keep winning, they know their opponents won't let up, as public opinion continues to support a ban on the late-term procedure.

"The problem is that the antis will continue to tinker with these statutes, and they've shown they're effective in doing that," says Priscilla Smith, an attorney at the New York-based Center for Reproductive Law and Policy. "So they'll continue to use up our resources. We'd rather be pursuing more proactive strategies, such as making contraceptives more fully available under private- and public-health insurance."

The lower court's ruling

The federal appeals court that ruled on the 1995 Ohio law, the first of its kind in the US, found it unconstitutional in three ways: Its description of the procedure was vague. It made no exception for women who might suffer "severe psychological or emotional injury" if they were barred from the procedure. It did not allow doctors enough latitude in making good-faith judgments.

Mr. Sekulow says other state laws banning partial-birth abortion are less vague than Ohio's, and so could prove to be better test cases for the Supreme Court.

Still, three justices dissented strongly Monday from the majority's decision not to hear the Ohio case. Justice Clarence Thomas, author of the dissent, reopened the question of whether a ban on abortions of viable fetuses should include an exception for the mental health of the woman, not just the physical health. Past Supreme Court rulings have asserted that doctors must be allowed to consider the psychological condition of a woman in weighing whether an abortion is necessary.

Legal scholar David Garrow was surprised by the content of the dissent. He expected Justice Thomas to focus more on the core issue - the egregious nature of partial-birth abortion - rather than the mental-health question.

"What Thomas says about mental health is just flat-out wrong," says Mr. Garrow, a professor at Emory University in Atlanta. He cites Supreme Court cases that explicitly state doctors must consider the mental health of a woman in post-viability abortion cases.

For abortion opponents, the mental-health exception is unacceptable, saying it can be applied too broadly.

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