US Supreme Court hears arguments on state-imposed abortion limits

By Kate Randall
26 April 2000

For the first time since 1992, the United States Supreme Court will hear arguments in an abortion-related case. The case involves a Nebraska law which outlaws a procedure that abortion opponents have labeled "partial-birth abortion." Such bans have been adopted in 31 states, and have been blocked or declared unconstitutional in 18 of the 21 states where they have been challenged. The high court is expected to issue a decision in the Nebraska case by late June.

Dr. LeRoy Carhart, one of only three abortion providers in Nebraska, has challenged the law. While anti-abortion groups claim that the state ban targets a specific procedure used in late-term abortions, the deliberately vaguely worded ban would outlaw a selected abortion procedure at any stage of pregnancy, even if the health of the mother were at risk.

In the famous Roe v. Wade decision in 1973, the Supreme Court effectively legalized abortion on demand for women in the first two trimesters of pregnancy. The decision also said that a woman could obtain an abortion after the second trimester if her health or life were threatened. The wording of the Nebraska law shifts the basis of abortion rights from the time of gestation to the location of the fetus at the time of termination.

The proper medical definition of the procedure under debate is known as dilation and extraction, or D&X. Referred to by physicians as pregnancy termination involving the intact removal of the fetus, abortion opponents have dubbed it "partial-birth abortion." In second-trimester abortions, particularly after the 15th week, removing the fetal skull from the uterus becomes far more difficult for the doctor, and because of its size it cannot be passed through a dilated cervix without inducing labor. For the fetus to be removed intact, after the umbilical cord is cut, the physician punctures the skull and drains its contents, allowing the head to be removed along with the rest of the fetus.

The other commonly used method for abortion in the second trimester is known at dilation and evacuation, or D&E, in which the fetus is removed from the uterus in parts. This procedure can pose risks of perforation of the uterus, hemorrhaging and infection. Furthermore, a doctor often cannot determine which method—D&E or D&X—best serves the health of the woman until the procedure is under way. Doctors performing the intact removal procedure in Nebraska would face fines of $25,000 and 20 years in prison if the ban were upheld.

More than 130,000 second trimester abortions are performed each year in the US. Sponsors of the "partial-birth abortion" bans are targeting not only these procedures, but the 90 percent of abortions that are performed in the first trimester. By terming the D&X procedure as "infanticide" outside the woman's body, and shifting the emphasis to the location of the fetus at the time of termination, they are opening up a backdoor challenge to the democratic right of woman to abortion as established by Roe v. Wade.

Women who undergo second-trimester abortions are often young, single or victims of violent or absent male partners. While there are wealthy and well-educated women who undergo the procedure, the overwhelming majority of these woman are poor. Oftentimes they don't recognize the early signs of pregnancy. While an early term abortion can cost as little as $320, at 22 weeks the procedure can cost close to $2,000. Many woman delay a decision on termination hoping to reconcile with the father, only to find that the man does not want to take on the responsibility or cannot afford it. Federal funds are banned from being used to finance abortions, placing a further financial burden on women.

Doctors in the US risk their lives providing abortion services to women. Dr. Bernard Slepian, a gynecologist and obstetrician and well-known defender of abortion rights in the Buffalo, New York area, was killed by a sniper in October 1998. His killer has yet to be apprehended. In February 1999 anti-abortion defendants were ordered to pay more than $107 million to Planned Parenthood and a group of doctors in an abortion rights suit. Anti-abortion groups and individuals had produced "wanted" posters of abortion providers and set up an anti-abortion web site that listed the names of doctors who performed abortions. A line was drawn through Dr. Slepian's name after he was gunned down in his own home.

In 1991 arsonists targeted the farm of Dr. LeRoy Carhart, the doctor who is challenging the Nebraska law, killing family pets and 17 horses. No one has ever been arrested in connection with the attack. Anti-abortion protesters have spread hog manure on the walkway leading to the Abortion and Contraception Clinic of Nebraska where he works; they have poured glue in the building's locks and broken windows. Carhart's facility is the only clinic in Nebraska that performs abortions after the 16th week, and some women travel as much as 25 hours to the clinic for the procedure in Bellevue. Dr. Carhart has said he will be forced to abandon his practice if the Nebraska law is upheld.

On April 5, the US House passed the "Partial-Birth" Abortion Ban. Previous such bans passed by Congress have been vetoed by President Bill Clinton. According to the abortion rights group NARAL (National Abortion and Reproductive Rights Action League Foundation), 70 anti-choice measures were adopted by US states in 1999, up from 62 in 1998 and 14 in 1996. These measures included:

* prohibiting specified state funds or programs from providing abortion services, counseling or referrals;

* limiting public medical assistance for abortions; singling out abortion facilities and providers for onerous and unnecessary regulation; and

* mandating that young women notify a parent prior to obtaining an abortion.

Texas and Michigan enacted seven anti-choice measures each in 1999, the highest number. Legislation adopted in Michigan under Republican Governor John Engler included a ban on the use of Department of Community Health funds for abortion counseling or referrals and denial of abortion services to a woman under the age of 18 without the written consent of a parent, unless she can secure a court order stating she is sufficiently mature enough to make her own decision. Michigan also adopted a 24-hour waiting period before an abortion can be performed, aimed at discouraging woman from undergoing the procedure.

In 1999, George W. Bush, Texas governor and Republican presidential candidate, signed legislation requiring parental notification before a minor can obtain an abortion. Materials prepared for distribution to pregnant teenagers include medically inaccurate and misleading information about the risks of abortion, including scientifically unproven links between abortion and breast cancer, and abortion and post-traumatic stress syndrome.

Anti-abortion groups, backed by Christian fundamentalists, the Republican Party and the extreme-right, have carried out a persistent campaign to chip away at the reproductive rights of woman since Roe v. Wade, particularly over the last decade. Their ultimate aim is to make abortion illegal and overturn a woman's right to choose. The views of these forces are in sharp contradiction to those of the American population, 80 to 85 percent of whom oppose outlawing abortion.