High court voids anti-abortion law

THE BALTIMORE SUN

WASHINGTON - Turning back the latest, and potentially most threatening, attack on Roe vs. Wade, a deeply divided Supreme Court struck down for the first time yesterday a state law that bans "partial-birth" abortions."

In a 5-4 ruling that cast doubt on most such laws now on the books in 31 states and that endangers an effort in Congress to pass similar legislation, the court nullified a Nebraska law because the measure could outlaw the most common forms of abortions.

Bans on "partial-birth" abortions generally seek to forbid any abortion that includes a partial removal of the fetus from the womb as part of the process. Because part of the fetus is brought outside the uterus before the fetus has died, supporters of such a ban say the procedure involves a "partially born" child, and they liken it to infanticide.

Efforts to outlaw the procedure have drawn strong support not only among legislators but also in public opinion surveys, and have been viewed - by both sides in the abortion debate - as the most serious threat yet to a woman's constitutional right to end her pregnancy. That right was established by the Roe decision in 1973.

Closing its current term with an emotionally charged recital of its differences over a variety of social issues, the court also ruled 6-3 that pregnant women who travel to and from abortions clinics have a constitutional "right to be let alone" that bars anti-abortion protesters from approaching them too closely.

The court's decision against the Nebraska ban was its first ruling on abortion rights in eight years - since a ruling in 1992 partly reaffirmed Roe vs. Wade and a woman's right to seek an abortion.

Justice Stephen G. Breyer, who was not on the court then, wrote the new ruling. The majority refused to reconsider Roe and reaffirmed strict constitutional limits on the states and Congress when they try to pass anti-abortion laws.

No law that seeks to bar an abortion procedure, the majority stressed, will be upheld if it bans a procedure that is supported as safe by "a significant body of medical opinion" and if it forbids that method to be used even when a doctor deems it the safest one for a patient.

Breyer noted that medical opinion is divided on the safety of some forms of "partial-birth" abortions. But he said such opinion did not have to be unanimous for the procedure to be constitutionally protected.

The ruling appears to leave the states and Congress with at least a narrow opportunity to try to draft new abortion bans. But new laws would be permitted only if they narrowly and specifically banned one rarely used method - the so-called "D&X;" procedure - and only if that method remained available for use by doctors who considered it the safest one for a particular patient.

That opportunity emerged most clearly as a result of a separate opinion by Justice Sandra Day O'Connor. Because her vote was necessary to form the five-member majority, her views - somewhat more encouraging to anti-abortion forces than Breyer's opinion - might turn out to be decisive in future cases.

But considering how the existing 31 state laws are worded, many of them might fail under either the Breyer or O'Connor approach, because many do not include an exception when use of the procedure was necessary to protect the health of the pregnant woman.

A similar fate may await the bills pending in Congress for a federal ban on "partial-birth" abortions - a ban that the president has twice vetoed and has said he would veto again.

Justice Clarence Thomas, in a dissenting opinion that he read in tones that flared at times with anger, said the decision would doom all such existing bans.

Clarke D. Forsythe, president of Americans United for Life, an anti-abortion group, echoed that view.

"The court," Forsythe said, "has effectively prohibited any state from redrafting their laws against partial-birth abortion laws. This is the most extreme opinion ever issued by the Supreme Court on abortion."

Simon Heller, legal director of the Center for Reproductive Law and Policy, an abortion rights group that had challenged the Nebraska law, said that "not all 31 laws are dead."

But, Heller added, "I don't think this leaves much room for legislative attack" on the procedures.

'Virtually irreconcilable'

The ruling seemed to serve to reignite the debate between the two sides, whose views, Breyer noted in his opinion, are "virtually irreconcilable."

Baltimore's Cardinal William H. Keeler, chairman of the U.S. Bishops' Committee for Pro-Life Activities, said the ruling "allows not only the destruction of children inside their mothers, but children mostly outside the womb as well."

"It is a frightening development," Keeler said.

But Nancy C. Lineman, executive director of the Maryland National Abortion and Reproductive Rights Action League, said: "Thankfully, the majority of the court clearly saw that the anti-choice movement was deliberately trying to erode women's choices."

Lineman noted that a similar ban has been considered in the Maryland General Assembly for the past five sessions and was defeated last year by only three votes.

One women's rights group, the NOW Legal Defense and Education Fund, said that the new decision "should take politicians out of the business of making personal, private, medical decisions."

Kathryn Rodgers, the group's president, said: "The decision should, but won't, put an end to the campaign" to overrule the Roe decision.

On the other side, Rep. J. C. Watts Jr. of Oklahoma, chairman of the House Republican Conference, indicated that the fight would go on.

"Congress," he vowed, "will proceed with putting an end to the gruesome procedure known as partial-birth abortion."

President Clinton said: "I think the court decision is clearly the only decision you could reach consistent with Roe vs. Wade." But he noted that, in the past, he has supported a "broad limitation" on the D&X; procedure.

The president - and a number of groups that commented on the ruling - noted the narrowness of the vote and indicated that this could make the court's future an issue in this year's presidential campaign.

Clinton said that "there will be somewhere between two and four appointments to the Supreme Court [in the next administration], and depending on who those appointees are, I think the rule will either be maintained or overturned.

"It's very much in the balance," he said.

A surprising aspect of the ruling was that Justice Anthony M. Kennedy, who voted with a 5-4 majority when the court retained most of the Roe decision eight years ago, dissented this time.

He denounced the majority for examining the Nebraska law from "the perspective of the abortionist."

Kennedy said the court's requirement that any ban on an abortion method allow the procedure when deemed necessary to protect a woman's health would mean there was no ban at all, because doctors who perform abortions would always claim to find it appropriate for medical reasons to use the banned method.

Joining Breyer and O'Connor in the majority were Justices Ruth Bader Ginsburg, David H. Souter and John Paul Stevens. Dissenting along with Kennedy and Thomas were Chief Justice William H. Rehnquist and Justice Antonin Scalia. Every justice but Souter wrote an opinion in the case.

Limitation on protests

The court's other abortion ruling yesterday upheld a 1993 Colorado state law that set up a fixed 100-foot zone around health facilities - including clinics where abortions are performed - and within that zone barred anyone from approaching within 8 feet of someone unless that person consented.

This was the fourth limitation on abortion protests the court had examined in the past seven years. The court ruled, by a 6-3 vote, that the Colorado "buffer zone" law was not a ban on what abortion protesters could say outside clinics, but simply a curb on their physical proximity to people going to and from the medical facility.

Scalia, his voice sometimes shaking with anger, denounced the ruling from the bench. After repeated rulings that have nullified efforts to pass anti-abortion laws, he said, the court "continues and expands its assault on abortion opponents' individual right to persuade women contemplating abortion that what they are doing is wrong." Thomas joined Scalia's dissent.

Kennedy recited from his separate dissenting opinion, his face reddening as he spoke.

In the majority were Stevens, Rehnquist, Breyer, Ginsburg, O'Connor and Souter.

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