WASHINGTON—In two hours of arguments immersed in exacting, graphic descriptions of abortion procedures, the Supreme Court seemed unlikely Wednesday to uphold a federal law that bans so-called partial-birth abortions.
But that will depend almost entirely on whether Justice Anthony Kennedy, who occupies the court's center and previously has frowned on late-term abortions, hues to the sentiments he expressed Wednesday. The court heard arguments in two cases in which lower courts struck down the 2003 law.
Kennedy appeared troubled throughout the session by the potential implications of the law. Would it leave few legal alternatives in cases in which a pregnancy threatens a woman's life? How frequently is a late-term procedure medically necessary? Would doctors be held criminally liable for performing emergency late-term abortions when they had no other choice?
Kennedy pressed both sides in the case on those questions, and hinted that he thinks the federal law may be too restrictive.
If a woman in need of a lifesaving, late-term abortion were to rely on a court's quick action, she might be in serious trouble, he said.
"I don't know if you could just go to a district judge and say, `I need an order.' The judge would take—would have to take—many hours to understand that," Kennedy said.
U.S. Solicitor General Paul Clement, defending the law in both cases, said women and doctors who think the procedures are necessary could try to prove that to judges, before emergency situations arose.
"That's something that there is in other areas of the law," Clement said.
The cases, Gonzales v. Carhart and Gonzales v. Planned Parenthood, present a number of serious legal questions.
The high court in 2000 struck down a similar ban in Nebraska because it made no provisions for women who needed late-term abortions for health reasons.
Congress adopted its own ban in 2003, after holding hearings about the procedures and concluding that they're never medically necessary.
Meanwhile, Justice Sandra Day O'Connor, the decisive vote in the 2000 decision, retired and was replaced by Justice Samuel Alito, who's expected to be less supportive of abortion rights.
The new law—a direct challenge to the justices' authority—now will be evaluated by a court whose new members are thought to be more sympathetic to abortion restrictions.
The law also invites the new justices to overturn a recent decision, a move that would defy the respect for precedent that's considered key to the court's stability.
The government says the law survives constitutional scrutiny because of Congress' fact-finding and its interest in preventing "infanticide," a word Clement used several times during Wednesday's hearings.
Abortion rights groups say the law is overly broad to the point that it would prevent many second-trimester abortions that have been presumed legal for years.
The debate is over a controversial method of ending pregnancies after the first trimester, when a fetus is fully formed. It involves pulling the fetus feet-first through the partially dilated cervix and puncturing its skull to allow it to pass.
Some doctors say that such intact extractions are the safest way to extract a fetus that's threatening a woman's health or life; others say it's never necessary because other methods can be just as effective.
The court's more liberal justices are presumed likely to strike down the ban; the court's conservatives, including new Chief Justice John G. Roberts, are likely to vote to preserve it.
That leaves Kennedy, appointed by a Republican but known to confound some conservative legal aims, in the middle.
Wednesday's arguments, though, offered less about the legal arguments and instead focused intensely on often-gruesome medical detail.
Clement found himself describing the difference between late-term abortions that destroy a fetus within the uterus, which would be legal under the 2003 law, and those that achieve "fetal demise" after a partial delivery.
Priscilla Smith, of the Center for Reproductive Rights, found herself arguing against the law by describing how similar the banned procedure is to other abortions.
Roberts asked her about the degree of cervical dilation necessary to perform the legal—versus the banned—procedure. Smith explained that differences in dilation weren't standard between the procedures and each doctor may do something different. That, she said, was part of the problem with the way Congress approached the issue.
The dominance of medical discussion during the arguments suggests that the justices are looking to draw very fine conclusions in their opinion, perhaps leaving the larger legal questions unaddressed.
It wouldn't be the first time. Since Roberts has been chief, the court largely has avoided sweeping statements, even in cases that involve hot-button topics such as abortion and euthanasia.
As do all abortion arguments at the high court, Wednesday's hearings attracted a throng of protests, both in favor and opposed to the legislation at issue and abortion in general.
For the first time in recent memory, though, it spilled briefly into the courtroom as a man stood and began shouting anti-abortion messages in rapid succession. Most of what he said was unintelligible, but as court police dragged him from the chamber, he said clearly: "Repent!"
He could be heard for at least a minute outside the courtroom, as police subdued him.
The man, Rives Miller Grogan of Los Angeles, was arrested, jailed and charged under a federal law that prohibits "loud, threatening or abusive language at the Supreme Court."
———
(c) 2006, McClatchy-Tribune Information Services.
Need to map