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MARGARET WARNER: Now, how the arguments went at the Supreme Court today. For that, we turn to NewsHour regular Jan Crawford Greenburg, legal affairs correspondent for The Chicago Tribune.
MARGARET WARNER: Jan, before we get to the arguments, what is the state of play constitutionally and legally in terms of when abortion is legal and when it is it’s not.
JAN CRAWFORD GREENBURG: Well, this is also determined by Roe versus Wade, which as you know, as the court handed down in ’73 and said that states could not ban all abortions, that a woman has a constitutional right to an abortion. That decision, as you know, has been incredibly controversial.
The Supreme Court in 1992 was asked specifically to overrule Roe and allow states to ban all abortions. The court refused to do so then. And it articulated a new way of analyzing when abortions can be regulated. Before the fetus can survive outside the womb, the court said then, states can regulate abortions. But the regulations cannot amount to an undue burden on a woman’s right to choose. That’s where the undue burden comes from — a substantial obstacle it said. But after viability — which is about 24 weeks now — after that states can step in and ban abortions unless the woman’s health or life is at stake.
MARGARET WARNER: And that standard goes back to “Roe V. Wade” in terms of being –
JAN CRAWFORD GREENBURG: Right.
MARGARET WARNER: In this country is it fair to say that except for treatment cases involving the health or life of the mother there aren’t abortions performed after the 24th week?
JAN CRAWFORD GREENBURG: That’s right.
MARGARET WARNER: But what this case —
JAN CRAWFORD GREENBURG: This case do want involve this. This is before the fetus could live outside the womb — previability.
MARGARET WARNER: So tell us about the arguments today.
JAN CRAWFORD GREENBURG: Attorney General Stenberg who we just saw argued that the case is about this very rare procedure that he said was bordered on infanticide, he said, and certainly states could ban that when other alternative means of abortion were available to women, that surely that was no undue burden. He urged the justices to read this Nebraska law very narrowly as only banning this one specific procedure.
Now the lawyer for the, Doctor Carhart, the Nebraska doctor challenging this law, says look, this slaw written very broadly. It doesn’t just ban partial-birth abortions as the opponents call it but it bans very common forms of abortion. Therefore because it is so broad, it amounts to an undue burden on a women’s right to choose. But, he had one more argument: he said even if the court were to narrowly read this law as only banning partial birth abortions, it still would be unconstitutional, because the state, he said, has no interest, no justifiable interest in banning this procedure which he said is safest for some women.
MARGARET WARNER: But he was talking, he was also saying wasn’t he, that there is not an exception for the life of the mother –
JAN CRAWFORD GREENBURG: That’s right.
MARGARET WARNER: — that it’s unconstitutional even under Roe v. Wade.
JAN CRAWFORD GREENBURG: Right, because there is no health exception. For some women, he said, this can be the safest procedure.
MARGARET WARNER: And was he pointing to and I wonder how both sides dealt with this, the wording, we saw the wording in the tape piece, the wording never uses that “D and X” medical terminology. How did they argue about that?
JAN CRAWFORD GREENBURG: That came up quite a lot today. In his — Simon Heller, the lawyer’s, contention was the state could have banned this procedure if that’s really what it was trying to do.
MARGARET WARNER: By name.
JAN CRAWFORD GREENBURG: Right. There is a medical termed – it’s called “D and X,” which is the shorthand for it and the state could have put that in the law and banned it. Because they left the law vague and described the procedure, that meant, according to his argument, the state was trying to do other things.
Now Attorney General Stenberg said at the time when Nebraska was passing this law, there were a couple of different medical terms in use. So, instead of picking one, they decided to just identify the procedure. This specific point caused some problems for some of the justices, notably Justice Ruth Bader Ginsburg, who obviously is a new Justice, wasn’t on the court in 1992 but a supporter of abortion rights. She said, you know, why wouldn’t the state, we could have avoided this whole argument had the state only specifically referred to this procedure by name. To her, she said, that is glaring that the state did not do so.
MARGARET WARNER: That, therefore, she meant it’s too broad.
JAN CRAWFORD GREENBURG: Right.
MARGARET WARNER: Tell us about some of the other justices how did they break down on this?
JAN CRAWFORD GREENBURG: This was an interesting argument on a lot of levels because as we saw in the piece introducing this, it’s a very emotional issue. Very contentious, 23% were arrested outside today for it erecting very large signs that violated regulations. The issue has been in the state legislatures and Congress. With all of this drama, the courtroom was packed. Reporters were behind the curtains crammed in little chairs sitting together. With all of this drama you would think that the argument itself would have this great import. But the justices were surprisingly restrained.
Unlike more controversial cases, for example, last week when we heard about the Miranda warnings they were engaged and very lively. Today they set back and let the attorneys articulate their positions and make their arguments. They were restrained. There wasn’t a lot of give and take or at least not as much as you would expect. The justice who clearly was most outspoken was Justice Antonin Scalia, a harsh critic of the court’s abortion jurisprudence — one of the three who would vote to overturn Roe v. Wade if that were up here today. He said, you know, he referred repeatedly to the procedure and described it in quite graphic detail suggesting that states could have an interest in banning the horror — as he said it — of a procedure that partially delivered a fetus which he referred to incidentally as a child.
MARGARET WARNER: So the language people use is key here, isn’t it?
JAN CRAWFORD GREENBURG: Right, yes, Justice Scalia would see use the term child instead of fetus. Other justices, of course, refer to it as the fetus. So his feelings are clear. He strenuously questioned Simon Heller and was quite aggressive in doing so. Now on the other side, Justice Ginsburg I think was most articulate for her reasons suggesting that the law was too broad. She also was disturbed that there was no exception in the law that would allow a doctor to perform an abortion if a woman’s health were an issue.
MARGARET WARNER: What did the three justices who were considered the swing Justices and in the ’92 case, upheld abortion rights: Souter, Kennedy and O’Connor, where were they today?
JAN CRAWFORD GREENBURG: Souter seemed to be siding with Ginsburg. He is among the more liberal justices on the court or considered to be. He seemed to suggest the law was too broad. The other two justices that we consider the moderates, the once that determine how the court goes on controversial issues were harder to read, particularly Justice Kennedy. But Justice O’Connor by the tone of two of her questions suggested that she was skeptical of the law honing in on the doctor’s strongest arguments that this did go too bar, that it banned more than one procedure and there was no exception for a doctor to perform it to protect the women’s health.
MARGARET WARNER: All right. Well, thanks, Jan. We’ll wait for the decision, thanks so much.