WASHINGTON -- The new wave of bans on certain late-term abortions -- laws that exist in nearly identical form in 31 states -- appeared to be in constitutional trouble in the Supreme Court yesterday.
Justices who remain from the coalition that last upheld abortion rights eight years ago, along with newer justices, questioned the breadth of a Nebraska law.
Their skepticism put in doubt the constitutionality of similar laws in other states and nearing passage in Congress. Maryland has no such law.
As the justices held a hearing on their first abortion-rights case since 1992, protesters from both sides of the issue milled around noisily on the court's front sidewalk.
Police arrested 23 anti-abortion demonstrators for displaying signs, some of them depicting fetal remains from abortions. The signs were larger than court rules allow.
Justice Sandra Day O'Connor, whose vote could be crucial to the outcome, said it is "difficult to read the [Nebraska] statute" so that it does not restrict a woman's right to abortion by other, constitutionally protected methods.
Nebraska's attorney general, Donald B. Stenberg, argued that the law bans only one, "little-used" type of abortion.
O'Connor was not convinced of that. The Nebraska law, she said, might also prohibit the most common type of abortion for a woman whose pregnancy is in the second trimester -- 13 to 26 weeks.
Simon Heller, a New York City lawyer for an abortion-rights group, the Center for Reproductive Law and Policy, said the Nebraska law was "so broadly written it could prohibit most second-trimester abortions."
The two procedures discussed yesterday go by these medical terms: "dilation and extraction," or D&X; -- the sole procedure that Stenberg said Nebraska wanted to ban -- and "dilation and evacuation," or D&E; -- the widely used midterm abortion method that is protected by the court's prior abortion rulings.
Both involve a partial removal of the fetus from the uterus into the birth canal, followed by the killing of the fetus.
Abortion foes contend that the partial removal of the fetus before killing is close to child murder because it means a live child is killed outside the womb.
Abortion-rights advocates say that a birth does not occur just because part of the fetus is moved into the birth canal. They argue that it is common in most abortions to try to remove much of the fetus to reduce the chance of perforating the uterus and endangering the woman.
Justice O'Connor referred yesterday to both as "rather gruesome procedures." But the remark did not seem to mean she would conclude that either procedure could be banned under the court's prior rulings in favor of abortion rights.
If the court agrees with Nebraska's view that its law applies only to D&X; abortions, it will then have to decide whether such a ban is constitutional. Several justices seemed to indicate that even such a narrowed ban might be unconstitutional.
O'Connor questioned the Nebraska law's lack of an exception for a pregant woman who might need a D&X; procedure to protect her health during abortion.
O'Connor was one of three justices who fashioned a compromise position that controlled the outcome of a 1992 decision -- the so-called "Casey" ruling that kept intact most of the right to abortion first established by the court in Roe vs. Wade 1973.
The two other justices in that bloc then were David H. Souter and Anthony M. Kennedy. Those three, plus two fervent supporters of Roe vs. Wade, formed a five-justice majority for the 1992 ruling.
Souter appeared yesterday to share O'Connor's worry about the wide impact of Nebraska's law.
Kennedy asked few questions, and none revealed what his current position might be. He did appear troubled that the state's attorney general had not taken a position to limit the law's scope until the state was defending it in court.
The new type of anti-abortion statute drew sharply negative assessments yesterday from two justices who were not on the court in 1992 - Ruth Bader Ginsburg and Stephen G. Breyer - and from one strongly pro-Roe justice still on the court - John Paul Stevens.
Ginsburg said that if the state intended to ban only the D&X; procedure, why did it not say so clearly in the law? She said the omission was "just glaring."
Breyer said that, even if the D&X; procedure was the only method targeted, it still might be necessary to the health of some women to have that procedure available, and, because of that, it would be protected by the Constitution. Breyer expressed doubt that the state had "any excuse" for not making a health-protection exception to its law.
Together with O'Connor and Souter, Ginsburg, Breyer and Stevens could form a new majority to preserve abortion rights and thwart the new bans on the late-term abortion procedure, perhaps making it unnecessary to have Kennedy's vote, too.
Only one justice -- Antonin Scalia -- spoke out fervently in defense of the new type of law, saying such laws are aimed at a method that "looks like infanticide."
States have passed the bans, Scalia said, because they are "concerned about rendering society callous to infanticide, to prevent society from descending into such callousness."
He went on: "They seek to prevent the horror of seeing a live human creature outside the womb, dismembered."
Chief Justice William H. Rehnquist, who dissented along with Scalia in the 1992 case, appeared to be sympathetic toward the Nebraska law. Another dissenter back then, Justice Clarence Thomas, said nothing during the hearing.
Justice Scalia sought to help the Nebraska attorney general defend the state's law, saying the statute targeted abortions that kill fetuses "outside the womb" because that "can lead to other forms of killing outside the womb."
When the abortion-rights lawyer's turn came, Scalia argued that while the procedure Nebraska was seeking to ban involved "the partial birth of a child," the more common methods of abortion do not.
Heller disagreed, saying that in "almost all" second-trimester abortions, a substantial part of the living fetus is moved into the birth canal before the fetus is killed.
He said the chief sponsor of the state law in Nebraska had told the legislature that the measure was designed to outlaw any abortion where "a little bit" of a fetus was shifted to the birth canal.
Heller said the state legislature had voted down a proposed amendment that would have limited the ban to one specific procedure, the D&X; method.