Supreme Court justices returned to the controversial issue of abortion Wednesday, weighing arguments on whether a procedure critics call "partial-birth" abortion can be banned constitutionally.
U.S. Solicitor General Paul D. Clement, arguing for the Bush administration in back-to-back cases, said the procedure is "something that is far too close to infanticide for society to tolerate."
Attorney Eve Gartner, representing the Planned Parenthood Federation of America, argued the procedure is sometimes necessary to protect a woman's health. "It averts catastrophic health consequences in some circumstances," she said.
The two-hour discussion of pros and cons of the procedure medically known as intact dilation and evacuation prompted justices to deal with both legal and medical questions. During the rarely used procedure, which occurs in the second or third trimester of pregnancy, a fetus is partially extracted through the birth canal and its skull is collapsed by suctioning out the brain.
One key question in the case is whether it is ever necessary. Clement argued that it is not, while the lawyers on the other side said it can be. The case reached the high court after two lower courts rejected the 2003 Partial-Birth Abortion Ban Act because the ban did not include a medical exception for the mother.
The two cases, Gonzales v. Carhart and Gonzales v. Planned Parenthood, were appealed from the 8th Circuit Court of Appeals and the 9th Circuit, respectively.
While ban opponents worry that the measure could reduce the rights of women to abortion that were gained in the 1973 Roe v. Wade decision, Clement, defending the government, said it is focused on a certain procedure.
"Congress didn't go after the dog, so to speak," he said. "It went after the tail."
Associate Justice Ruth Bader Ginsburg said the difference between it and a more commonly used procedure, dilation and extraction, or "D&E," is "not large in particular cases." But Clement argued they are different because in "D&E," the fetal death occurs in the uterus, whereas in the procedure that would be banned, the fetus is "almost halfway out of the mother."
Associate Justice Stephen Breyer raised the issue of division among doctors about whether the procedure that would be banned is safe or not. "I don't know if you're supposed to count doctors or what," he said.
Supporters of the ban have cited congressional findings to defend their stance, but Priscilla Smith, the lawyer for Dr. Leroy Carhart, said the findings should be rejected.
"The findings in this case are simply unreasonable and not supported by the evidence," she said.
For example, congressional findings said the procedure was not included in medical school training, but she cited several leading medical schools that include it in their curricula.
Early in Smith's time before the justices, a male protester inside the courtroom began shouting that abortion was a "shame" and urged repentance.
"We will give you an extra 30 seconds," Chief Justice John Roberts assured Smith, prompting laughter from the audience, even as the apprehended protester's yelling echoed outside the courtroom.
Gartner, giving her arguments in the second hour, noted that decisions about the death of a fetus are a personal matter for the patient involved, who may draw on moral and religious views in determining her best treatment.
"It's a very personal question that really goes to the heart of this case," she said. "Different people will have different views about this. What Congress has done here is take away from women the option of what may be the safest procedure for her."
Associate Justice Clarence Thomas did not attend the arguments due to illness, but Roberts said he would participate in deciding the case.
Hundreds of people from both sides of the debate gathered outside the court. Matthew Connelly, a Washington writer, arrived an hour and a half before the arguments. A supporter of abortion rights, he questioned the purpose of the anti-abortion demonstrators.
"Are these folks praying to try to change their minds?" he said, referring to the justices. "That's something you don't see every day."
Signs featuring large graphic pictures of abortions were countered with signs that read "Pro Faith, Pro Family, Pro Choice." One woman held a huge hanger with a sign that read "We won't go back to illegal abortions Drive out the Bush regime." As the arguments began, one minister led anti-abortion activists in reciting the Lord's Prayer.
After the arguments, legal experts took turns before TV cameras to give their interpretation of the case.
Anita Staver, president of Liberty Counsel, which filed a brief supporting the ban on behalf of the Association of Pro-Life Physicians, said, "We will continue to work in every way that we can to keep this law on the books and to certainly help develop future laws to make sure that abortion procedures that are barbaric will not be legal."
Carhart, the New York doctor who has long been before the court defending the right to perform abortions, told reporters he has never accepted the term "partial-birth abortion."
"I don't use it," he said. "I think it's partial truth, partial truth abortion."
Chansin Bird contributed to this report.
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Christianity Today's full coverage of the partial birth abortion includes a decade's worth of articles.
In the October issue of First Things, Hadley Arkes suggested that Clarence Thomas may vote against the ban on the basis of limited powers. The article isn't online, but Don Erler summed it up in a Ft. Worth Star-Telegram column.
At ScotusBog, Lyle Denniston writes that Justice Kennedy "Kennedy dropped suggestive hints one after the other that he is troubled by what Congress attempted in the Partial-Birth Abortion Ban Act of 2003."
Other news coverage includes:
High Court focuses on medical alternatives in partial-birth abortion cases | Several justices, including Justice Anthony Kennedy, the crucial swing vote on the issue, appeared intensely interested in whether practical alternatives to the controversial procedure exist (Legal Times)
Justices hear arguments on late-term abortion | There were moments on Wednesday, during Supreme Court arguments on a federal law that bans a disputed method of abortion, that the proceedings seemed more like a medical school seminar than an appellate argument (The New York Times)
No pointers to ruling in abortion case | Likely swing vote Kennedy asks questions without disclosing his position (The Washington Post)
High court hears cases on ban of abortion method | The justices are to decide whether to uphold a 'partial-birth' prohibition passed by Congress in 2003 (The Los Angeles Times)
Justices have pointed abortion discourse | The graphic details of a disputed abortion procedure filled the Supreme Court on Wednesday as justices voiced concern with a federal ban on that operation (Associated Press)
Top court considers major abortion test cases | Several U.S. Supreme Court justices asked on Wednesday whether the first nationwide ban on a specific abortion procedure must be struck down for failing to allow exceptions for a pregnant woman's health (Reuters)
U.S. high court hears partial birth abortion case | The Supreme Court hears arguments on the constitutionality of the Partial Birth Abortion Ban Act. The court had struck down a previous version of the measure on the grounds that it did not allow for doctors to use procedures they thought necessary to protect the woman's health. (All Things Considered, NPR)
Doctor, there's a lawyer in my womb | The Supreme Court attempts to understand partial-birth abortion (Dahlia Lithwick, Slate)
Drama in the Court | As the pro-choice movement celebrated victories at the ballot, Supreme Court justices heard 'partial birth' arguments that could reveal where they really stand on abortion (Debra Rosenberg, Newsweek)