WASHINGTON (AP) — Letting states ban a surgical procedure that opponents call partial birth abortion would affect only "a little-used form of abortion that borders on infanticide," the Supreme Court was told Tuesday.
"The state interest here is drawing a bright line between abortion and infanticide," Nebraska Attorney General Don Stenberg argued in seeking 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."
None of the state's purported interests "is sufficient to override a woman's interest in her health and bodily integrity," he said.
As the legal, moral and political war over abortion returned to the nation's highest court after an eight-year absence, the subdued argument session inside the stately courtroom sharply contrasted with dueling demonstrations outside the building.
Nothing during the court's hourlong argument session indicated a shift among the justices' views on abortion since 1992, when the court reaffirmed by a 5-4 vote that women have a constitutional right to end their pregnancies.
Questions and comments from two key justices — Sandra Day O'Connor and Anthony M. Kennedy — voiced concern about the Nebraska law's sweep.
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.
Of the three remaining dissenters from the 1992 decision — Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas, Scalia was by far the most animated Tuesday.
He repeatedly referred to "the horror" of the abortion procedure at issue, which he described as taking "a living, unborn child" from the uterus and "killing that unborn child."
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.
Anti-abortion and abortion rights demonstrators gathered in a driving rain outside the Supreme Court building this morning. The groups of a few dozen people each tried to outdo each other with signs and slogans.
A huge, anti-abortion banner depicted a headless baby; another nearby said "partial birth abortion is infanticide." Abortion rights demonstrators marched in a circle in front of the banners chanting: "Right to life, that's a lie. You don't care if women die."
"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.
Elizabeth Toledo, vice president of the National Organization for Women, said that's what abortion rights groups fear.
"The strategy of the abortion movement has been to eliminate abortion by limiting women's access to health care. When they haven't been able to eliminate the law, they simply have tried to cut off women's ability to get care," she said.
Partial-birth abortion is not a medical term. Doctors call the method 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.
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.
A month after the Nebraska law was struck down, along with those in Iowa and Arkansas, nearly identical abortion laws in Illinois and Wisconsin were upheld by another federal appeals court.
Leroy Carhart, one of only three doctors known in Nebraska to perform abortions, challenged the state's law, which he told reporters Monday is aimed at "taking away the rights of American women to have abortions."
The case is Stenberg vs. Carhart, 99-830.