RENEE MONTAGNE, host:
And the election may have altered some of Washington, but not all of it. Today, the Supreme Court returns to work. They'll hear a case on the federal ban on so-called partial-birth abortions.
Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG: Six years ago, a closely divided Supreme Court struck down a Nebraska law banning so-called partial-birth abortions because among other things, the law did not have an exception to preserve the health of the mother.
The court said that a significant body of medical authority viewed the procedure as safer in certain circumstances. So a ban would be an undue burden. But three years later, Congress adopted a similar law, stating that the procedure is never medically necessary.
So today, the issue returns. This time though, the justice who provided the deciding vote six years ago, Sandra Day O'Connor, is gone, replaced by a far more conservative justice, Samuel Alito. Anti-abortion advocate Jay Sekulow.
Mr. JAY SEKULOW (Anti-abortion Advocate): I think you can't ignore that reality that this is a different Supreme Court six years later.
TOTENBERG: At the heart of today's case are the congressional findings included in the partial-birth law. Without exception, the lower courts have found them to be an unconstitutional end run around the Supreme Court. Also without exception, the lower courts concluded that the Congressional findings were simply wrong. For instance, one court heard from 11 highly regarded specialists in the field, and 10 of them said that in some cases, a so-called partial-birth abortion procedure is necessary to prevent hemorrhaging, organ failure or infertility.
Indeed, the court noted that even the one doctor who completely supported the ban conceded he had used and would use the procedure in some circumstances. The lower courts also found that certain Congressional findings were on their face, untrue. The assertion, for instance, that no medical college teaches the procedure when, in fact, many major medical schools do.
First, some definitions.
The procedure that abortion opponents call partial-birth is by all accounts done in the second trimester of pregnancy when the fetus is not yet viable. Only 10 percent of the abortions done in the U.S. are done in the second trimester, and most are in cases where the mother's health is at serious risk, or the fetus has been diagnosed with serious anomalies. In the second trimester, almost all procedures are D&Es, meaning dilation and evacuation. In most D&Es, the fetus is dismembered or comes apart while in the uterus.
But one form of D&E occurs when the fetus emerges from the womb intact, with the head remaining inside the uterus. And because the head is too large to come out on its own, the doctor compresses it, killing the fetus. That procedure is known is an intact D&E, or a D&X. That is what abortion opponents say they consider to be a partial-birth abortion. Some doctors think there's no need to do a D&X or so-called partial-birth abortion, that alternative methods are just as safe.
But others disagree, including the leading medical group in the field, the American College of Obstetricians and Gynecologists. Fred Frigoletto is the past president of the association, and serves as associate chief of OBGYN Services at Massachusetts General Hospital. He lik many other doctors we queried, contends that the term partial-birth is meaningless in any medical sense, and that there is no significant difference between the D&E and a D&X.
Mr. FRED FRIGOLETTO (Former President, The American College of Obstetrician and Gynecologists): These procedures are selected generally, at least in my experience, on the basis of what's best for that woman, and the best way to evacuate her uterus for the situation that she's in.
TOTENBERG: Indeed, even many doctors who do not do the D&X procedure still oppose the federal ban for fear that its terms are so imprecise that they could be construed by a prosecutor as a ban on all D&E procedures, putting doctors at risk of jail, and thus amounting to a ban on almost all second-trimester procedures.
Michael Greene is a professor of obstetrics and gynecology at Harvard Medical School
Dr. MICHAEL GREENE (Obstetrics and Gynecology, Harvard Medical School): The standard procedure could be construed as conflicting with the law as written.
TOTENBERG: That's because the federal ban does not use medical terms, it uses lay terms, and it outlaws taking any overt act that would terminate life for a fetus once it is outside the womb to the point of the naval. So widespread is medical opposition to the law that the American Medical Association has withdrawn its initial endorsement of the statute.
Eve Gartner, who represents Planned Parenthood, will tell the Supreme Court today that Congress could have enacted a ban that would pass constitutional muster, that it could've used medical terms and had a health exception for women. But, she contends, Congress was more interested in passing a law for propaganda purposes.
Ms. EVE GARTNER (Planned Parenthood): Congress drafted a law that doesn't match up with the pictures that Congress has been showing to the American public for almost 10 years now. We're not talking about fetuses that could survive if they were born.
James Bopp of the National Right to Life Committee counters, this procedure is just too close to infanticide.
Mr. JAMES BOPP (National Right to Life Committee): Do we have to approve the performance of partial-birth abortions, which involves the intentional killing of a child that is just inches away from complete delivery of the child? I mean, literally, the child is being held in the doctor's hand alive, and is then killed by the doctor. This procedure is so close to infanticide that it seems like we need a bright line here.
TOTENBERG: Abortion rights activists have gone to great lengths in these cases to document the many serious maternal health conditions and grave fetal anomalies that could necessitate the kind of procedure that would be banned under even the narrowest interpretation of the partial-birth law.
In one case outlined in a friend-of-the-court brief, for instance, it took until the 20th week of pregnancy before doctors were sure that a woman was carrying a child with such serious defects that the infant, even if it lived to term, would not survive. Meanwhile, the mother had developed tumors and her health was at risk. She asked that we not use her name.
Unidentified Woman: My understanding is that the ban that's under discussion would be defined to include the procedure that I had.
TOTENBERG: Abortion opponents contend that even if there are some cases where the banned procedure would be safer, the number is negligible. James Bopp.
Mr. BOPP: That has to be balanced. That slight safety increase.
TOTENBERG: But Planned Parenthood's Eve Gartner counters that there is no balancing when you are talking about a fetus that cannot survive, no matter how the procedure is done.
Ms. GARTNER: There's no legitimate reason for the government to force the woman to have a less than optimally safe abortion procedure.
TOTENBERG: That's not what Justice Anthony Kennedy said, though, in an impassioned dissent to the Supreme Court's ruling six years ago. Kennedy, who is widely viewed as the deciding vote in this case, said back then that the court was closing its eyes to a law expressing the will of the people that medical procedures be governed by moral principles based on the intrinsic value of human life, including the life of the unborn.
Nina Totenberg, NPR News, Washington.
INSKEEP: So that case goes before the court today as the rest of Washington adjusts to a new landscape.
If you're just waking up, here are the basics: Democrats won the House of Representatives, control of the U.S. Senate hinges on two close races in Virginia and Montana. And we'll bring you more as we learn more.
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