c. 2006 Religion News Service

WASHINGTON _ Supreme Court justices returned to the controversial issue of abortion Wednesday (Nov. 8), weighing arguments on whether a procedure critics call “partial-birth” abortion can be banned constitutionally.

U.S. Solicitor General Paul D. Clement, arguing for the Bush administration in back-to-back cases, said the procedure is “something that is far too close to infanticide for society to tolerate.”

Attorney Eve Gartner, representing the Planned Parenthood Federation of America, argued the procedure is sometimes necessary to protect a woman’s health. “It averts catastrophic health consequences in some circumstances,” she said.

The two-hour discussion of pros and cons of the procedure _ medically known as intact dilation and evacuation _ prompted justices to deal with both legal and medical questions. During the rarely used procedure, which occurs in the second or third trimester of pregnancy, a fetus is partially extracted through the birth canal and its skull is collapsed by suctioning out the brain.

One key question in the case is whether it is ever necessary. Clement argued that it is not, while the lawyers on the other side said it can be. The case reached the high court after two lower courts rejected the 2003 Partial-Birth Abortion Ban Act because the ban did not include a medical exception for the mother.

The two cases, Gonzales v. Carhart and Gonzales v. Planned Parenthood, were appealed from the 8th Circuit Court of Appeals and the 9th Circuit, respectively.

While ban opponents worry that the measure could reduce the rights of women to abortion that were gained in the 1973 Roe v. Wade decision, Clement, defending the government, said it is focused on a certain procedure.

“Congress didn’t go after the dog, so to speak,” he said. “It went after the tail.”

Associate Justice Ruth Bader Ginsburg said the difference between it and a more commonly used procedure, dilation and extraction, or “D&E,” is “not large in particular cases.” But Clement argued they are different because in “D&E,” the fetal death occurs in the uterus, whereas in the procedure that would be banned, the fetus is “almost halfway out of the mother.”

Associate Justice Stephen Breyer raised the issue of division among doctors about whether the procedure that would be banned is safe or not. “I don’t know if you’re supposed to count doctors or what,” he said.

Supporters of the ban have cited congressional findings to defend their stance, but Priscilla Smith, the lawyer for Dr. Leroy Carhart, said the findings should be rejected.

“The findings in this case are simply unreasonable and not supported by the evidence,” she said.

For example, congressional findings said the procedure was not included in medical school training, but she cited several leading medical schools that include it in their curricula.

Early in Smith’s time before the justices, a male protester inside the courtroom began shouting that abortion was a “shame” and urged repentance.

“We will give you an extra 30 seconds,” Chief Justice John Roberts assured Smith, prompting laughter from the audience, even as the apprehended protester’s yelling echoed outside the courtroom.

Gartner, giving her arguments in the second hour, noted that decisions about the death of a fetus are a personal matter for the patient involved, who may draw on moral and religious views in determining her best treatment.

“It’s a very personal question that really goes to the heart of this case,” she said. “Different people will have different views about this. … What Congress has done here is take away from women the option of what may be the safest procedure for her.”

Associate Justice Clarence Thomas did not attend the arguments due to illness, but Roberts said he would participate in deciding the case.

Hundreds of people from both sides of the debate gathered outside the court. Matthew Connelly, a Washington writer, arrived an hour and a half before the arguments. A supporter of abortion rights, he questioned the purpose of the anti-abortion demonstrators.

“Are these folks praying to try to change their minds?” he said, referring to the justices. “That’s something you don’t see every day.”

Signs featuring large graphic pictures of abortions were countered with signs that read “Pro Faith, Pro Family, Pro Choice.” One woman held a huge hanger with a sign that read “We won’t go back to illegal abortions _ Drive out the Bush regime.” As the arguments began, one minister led anti-abortion activists in reciting the Lord’s Prayer.

After the arguments, legal experts took turns before TV cameras to give their interpretation of the case.

Anita Staver, president of Liberty Counsel, which filed a brief supporting the ban on behalf of the Association of Pro-Life Physicians, said, “We will continue to work in every way that we can to keep this law on the books and to certainly help develop future laws to make sure that abortion procedures that are barbaric … will not be legal.”

Carhart, the New York doctor who has long been before the court defending the right to perform abortions, told reporters he has never accepted the term “partial-birth abortion.”

“I don’t use it,” he said. “I think it’s partial truth, partial truth abortion.”

_ Chansin Bird contributed to this report.

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