July 10, 2000
Pro-lifers suffer defeat in 'partial-birth' abortion case
___By Kenny Byrd
___Associated Baptist Press
___WASHINGTON (ABP)--Abortion opponents suffered defeat at the end of the U.S. Supreme Court's term, as justices struck down a Nebraska law banning "partial-birth" abortions.
___The sharply divided court issued its most important ruling on abortion in eight years,when it upheld its historic 1973 Roe vs. Wade decision affirming a woman's right to abortion.
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___In a 5-4 decision, the justices said the Nebraska ban that bars "partial-birth abortions" except in cases where the life of the mother is at risk lacks the requisite exception for preserving the mother's health and places an "undue burden" on a woman's right to choose an abortion.
___Thirty states have enacted similar bans that may now be in question. However, in a concurring opinion, Justice Sandra Day O'Connor said she would view at least some of those bans constitutional if they included a health exception.
___Justice Stephen Breyer wrote the opinion for the court. Breyer said states may ban certain abortion procedures but must include an exception allowing their use in cases where the procedure is "necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."
___Breyer was joined by O'Connor and Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg.
___In a sharply worded dissent, Justice Clarence Thomas described the controversial abortion procedure in gruesome detail and called the court's ruling "indefensible."
___Thomas said Roe vs. Wade, where the court ruled that choosing an abortion early in pregnancy is protected by a woman's right to privacy, was "grievously wrong."
___"Abortion is a unique act, in which a woman's exercise of control over her own body ends, depending on one's view, human life or potential human life," Thomas said.
___Justice Antonin Scalia said the description of the procedure "evokes a shudder of revulsion."
___He said one day the high court's ruling will be compared to rulings in cases such as Dred Scott and "will be assigned its rightful place in the history of this court's jurisprudence."
___Breyer said about 90 percent of all abortions performed in the United States take place during the first trimester of pregnancy, before 12 weeks of gestation age. Most other abortions are performed during the second trimester--12 to 24 weeks.
___The most common form of abortion in the latter stage is called D&E.
___But if the fetus presents a head first, doctors use a different procedure known as D&X, in which the fetus is destroyed by extracting the contents of the skull.
___The Nebraska law sought to ban that procedure, which often is described by opponents as "partial-birth abortion."
___But the high court said the law's broad wording also would prohibit the more common D&E procedure.
___O'Connor's concurring opinion, however, which amounted to the swing vote in the matter, said if states wrote laws that banned only the D&X procedure and included a health exception, she would declare them constitutional.
___That offered little comfort to Thomas, however, who said "health" has been used so loosely in abortion law that a health exception would render any such ban meaningless.
___Thomas also disagreed with the majority that the law's language would ban both types of abortion.
___In a concurring opinion, Stevens said that despite graphic descriptions of the D&X procedure, he is unpersuaded that it "is more brutal, more gruesome, or less respectful of 'potential life'" than the procedure the Nebraska law claims to allow.
___Ginsburg concurred in the ruling and added the Nebraska law "does not save any fetus from destruction, for it targets only a method of performing abortion."
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