Ban on 'partial-birth' abortion overturned

The US Supreme Court is refusing to open a new front in the war against abortion in America.

Instead, the nation's highest court has again affirmed that a woman has a constitutional right to abortion and that individual states may not pass laws that substantially interfere with the exercise of that right until late in a pregnancy.

In a 5-to-4 decision yesterday, the nation's highest court struck down a Nebraska law that banned a controversial medical procedure that opponents call "partial birth" abortion.

The majority ruled that the law as written by state legislators is too vague and that it violated fundamental principles set out in prior court precedents.

"The question before us is whether Nebraska's statute, making criminal performance of a 'partial-birth abortion,' violates the federal Constitution. We conclude that it does," writes Justice Stephen Breyer for the majority.

Some 29 states have passed similar laws, while President Clinton has vetoed similar legislation passed by Congress.

The case, Stenberg v. Carhart, is one of the most significant of the current Supreme Court term in part because of what a majority of justices declined to do - strike down or in any way weaken the landmark 1973 Roe v. Wade decision and the line of cases springing from it.

Yet, with the next president likely to appoint new justices to the court, the next abortion case could go the other way.

"The key point here is that the ruling was a 5-4 razor-thin decision," says Elizabeth Cavendish, legal director of the National Abortion and Reproductive Rights Action League.

A central holding in Roe and a 1992 decision that upheld it is that states may not pass laws that create a substantial obstacle - or "undue burden" - to women obtaining an abortion at any time prior to fetal viability, when a child can survive outside the womb.

The court ruled that the Nebraska law created an undue burden and also did not account for instances when the outlawed procedure might be necessary to preserve a woman's life or health.

In addition, the court said that the statute was so vague that it might be applied to other abortion procedures.

"All those who perform abortion procedures using that method must fear prosecution," Breyer writes. "The result is an undue burden upon a woman's right to make an abortion decision."

In a dissent, Justice Anthony Kennedy said states should "not be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life."

At issue in the Nebraska case was a rarely used abortion method in which most of the fetus is drawn into the birth canal prior to being killed.

"This is not significantly different from infanticide," argues William Saunders, counsel for the anti-abortion Family Research Counsel in Washington.

But others say the Nebraska law was a kind of Trojan horse - part anti-abortion publicity campaign based on shocking images of dismembered fetuses, part a legislative attempt to bypass 27 years of constitutional protection for abortion.

Opponents of the Nebraska law say it is so vaguely worded it could be used to outlaw a range of abortions, including some early in pregnancy.

Supporters of the law hoped the high court would adopt a new legal test that would draw a clear distinction between abortion and infanticide.

If the court had drawn such a distinction, it would have expanded state governments' power to outlaw certain types of abortions even when they occur prior to fetal viability.

Such a ruling would have gutted protections established in Roe.

States are free to regulate or even ban abortion after fetal viability. But prior to that, the constitutional right to abortion must be afforded to women in all states.

Opponents of "partial-birth" laws were worried that the viability standard would be eroded if the high court permitted state regulation of an abortion procedure prior to fetal viability.

The ruling also says safeguards for a woman's health, as well as life, must be included in any state regulation.

In a separate 6-to-3 opinion, the court for the first time declared that floating protective buffer zones are a constitutional means to safeguard women seeking access to abortion clinics in the face of pro-life protesters.

(c) Copyright 2000. The Christian Science Publishing Society