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WASHINGTON - Several US Supreme Court justices asked on Wednesday whether the first nationwide ban on a specific abortion procedure must be struck down for failing to allow exceptions for a pregnant woman's health.
The court is debating one of the nation's most divisive and politically charged issues in two cases being closely watched as tests of whether President George W. Bush's two new conservative appointees might vote to restrict abortion rights.
Abortion rights attorneys argued that the nationwide ban on so-called partial-birth abortions would result in serious and devastating health complications for some pregnant women.
But Solicitor General Paul Clement of the US Justice Department defended the Partial-Birth Abortion Ban Act that the Republican-led US Congress approved and Bush signed into law in 2003.
"Congress was entitled to make a judgment in furthering its legitimate interests that they were going to ban a particularly gruesome procedure that blurred the line between abortion and infanticide," Clement said.
The law makes it a crime for a doctor to perform an abortion when the "entire fetal head" or "any part of the fetal trunk past the navel" is outside the woman's uterus.
The procedure, which often occurs in the second trimester of pregnancy, is known medically as intact dilation and extraction.
About 45 minutes into the arguments, the hearing was disrupted by shouts from an anti-abortion protester, who was then dragged out of the courtroom by police.
The judges considered whether a particular abortion method can be outlawed. They did not revisit their landmark Roe v. Wade ruling in 1973 that women have a basic right to abortion.
The hearing came a day after South Dakota voters overturned a state abortion ban that supporters had championed as the best chance to challenge that landmark ruling.
A number of justices questioned how they can uphold the federal law when the court in 2000 struck down a similar Nebraska law for failing to provide an exception to protect a woman's health.
"How can we reach a different conclusion here?" Justice Stephen Breyer, the author of the majority opinion in 2000, asked.
Breyer expressed concern that women with special health problems might have to take their cases to judges.
"I don't see how it's going to work without some people suffering serious illness as a result of mistakes by the judge," he said.
Congress found the abortion procedure was never "medically necessary" to protect a woman's health.
"Are not some of the findings by Congress clearly erroneous?" Justice John Paul Stevens asked.
Justice Anthony Kennedy, a moderate conservative who may hold the controlling vote, questioned both sides closely.
He said to one of the abortion rights lawyers, "It seems to me that your argument is that there is always a constitutional right to use what the physician thinks is the safest procedure."
Priscilla Smith of the New York-based Centre for Reproductive Rights said declaring the law unconstitutional is "the only course that will protect women from needless risks of uterine perforation, infertility, sepsis and haemorrhage."
Eve Gartner of Planned Parenthood Federation of America made a similar argument. "What Congress has done here is take away from women the option of what may be the safest procedure for her," she said.
One of Bush's appointees, Chief Justice John Roberts, generally appeared supportive of the government's position. The other appointee, Justice Samuel Alito, did not ask any questions during the arguments.
The case was heard by only eight justices. Justice Clarence Thomas, a staunch opponent of abortion rights, was unable to attend because of illness, but will decide the cases, Roberts said. A ruling is expected by the end of June.
- REUTERS
