ELIZABETH BRACKETT: It's an unobtrusive building in a small Nebraska town. But the large sign is clear: abortions are performed here. Whether they will continue to be performed in this clinic, is now up to the U.S. Supreme Court. Clinic director Dr. Leroy Carhart is the plaintiff in the case that challenges the state of Nebraska's ban on so-called partial birth abortions.
DR. LEROY CARHART: This is possibly the most important issue to go before the Supreme Court I'd say since Roe versus Wade.
ELIZABETH BRACKETT: Roe versus Wade is the landmark Supreme Court decision that made abortions legal in this county in 1973. Ever since then, antiabortion forces have been trying to convince the court, the Congress, and the country to overrule the decision, so far, without success. That has fueled their determination to convince state legislatures to at least set limits on the procedure, most recently by banning what they call partial birth abortions.
DON STENBERG, Nebraska Attorney General: The respondent says the state has no legitimate interest in how a partially born child is killed.
ELIZABETH BRACKETT: Nebraska's attorney general, Don Stenberg, set up a moot court to practice the arguments he used today before the Supreme Court.
DON STENBERG: This case does not involve the issue of overturning Roe versus Wade. The question here is whether a state may ban one particularly barbarous form of abortion.
LEGISLATOR: The definition of a partial-birth abortion is --
ELIZABETH BRACKETT: The Nebraska state legislature passed a ban on what it called partial birth abortion in June of 1997, but it was enjoined a short time later. Dr. Carhart's challenge is the first of its kind to reach the US Supreme Court. 30 other states have passed similar bans, but many have been struck down in lower courts as unconstitutional.
Nebraska's law defines partial birth abortion as: "An abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child…or a substantial portion thereof…before killing the unborn child."
The law bans a procedure called a "D and X," intact dilation and extraction. Dr. Carhart contends this it is an extension of a more common procedure known as Dilation and Evacuation, or a "D and E."
DR. LEROY CARHART: In "D and E," you are classically breaking up the fetus within the uterus and taking out one piece at a time. With a "D and X," you are trying to remove the fetus intact, or at least as intact as possible. There is no difference between a "D and E" and a "D and X." The "D and X" is just an extension of the "D and E."
ELIZABETH BRACKETT: Stenberg says the law is clearly meant to ban only the "D and X" procedure, not the "D and E" procedure.
DON STENBERG: In a "D and E" the fetus is dismembered piece by piece. In a partial birth abortion the child is pulled from it's mother's womb up to its neck and then killed. So they are clearly two different practices.
ELIZABETH : Carhart denies that such a clear difference exists.
DR. LEROY CARHART: It would mean that over 98% of the abortions that we currently do would be criminalized. It would mean that for every time I did an abortion, that I would be subject to a $25,000 fine, up to 20 years in jail and loss of my medical license.
ELIZABETH BRACKETT: Colleen Connell of the American Civil Liberties union says if the Nebraska law were found constitutional it would put all doctors who perform abortions at risk of breaking the law.
COLLEEN CONNELL, American Civil Liberties Union: The people who like these laws and write these laws say, "oh, it only violates or only bans one method of abortion." In fact, when you look at the medical testimony of the doctors around the country -- including doctors from some of the finest academic institutions -- the doctors say that the language of these laws basically bans everything we do in an abortion procedure, or in an obstetric delivery room, when we run into problems.
ELIZABETH BRACKETT: Dr. Carhart worries that the law could put a woman's health at stake.
DR. LEROY CARHART: There are times when the "D and X" procedure is the safest procedure for a woman. And I would have trouble telling you if you came to me as a client and I'd say, "listen, I know there's this excellent procedure that will reduce your risks considerably, ause the state has said we can't do that." It puts the state between the patient and the physician, making me often do something that is less healthful or less in your best interest for health than what they going to make me do.
ELIZABETH BRACKETT: Nebraska's lieutenant governor, Dave Maurstad, introduced he partial birth abortion ban when he was a state senator
DAVE MAURSTAD, Lt. Governor, Nebraska: Former Surgeon General C. Everett Koop said this, in fact, that this particular procedure is never medically necessary for the health of the life of the mother. And so it's based upon his belief, the belief of many physicians throughout Nebraska and across this country that that's really kind of a red herring, that this is in fact a needed procedure that needs to be included in the abortionist's arsenal.
WOMAN: I'm here for my checkup.
ELIZABETH BRACKETT: The key issue before the Supreme Court is whether the Nebraska law places an undue burden on a women's right to chose. Clearly it does, says Janet Benshoof, president of the Center for Reproductive Law & Policy. The center's lawyers argued Carhart's case today.
JANET BENSHOOF, Center for Reproductive law & Policy: It eliminates all health concerns and safety concerns for women. It looks at abortion from the onset of pregnancy. This is not a case about late abortion, and it has no exception for women's health, no exception for life or rape or incest.
ELIZABETH BRACKETT: Why wouldn't this create an undue burden on the right of a women to choose an abortion?
DON STENBERG: Because it's a little used procedure. Because all of the most common forms of abortion that are currently practiced remain available under this particular law.
ELIZABETH BRACKETT: Both sides agree on one thing: this is a critically important abortion case.
DR. LEROY CARHART: The stakes are high. I mean a woman can lose everything they have. But hopefully we'll come out at least as good or better, but I think it's tremendous. It's scary. I think that there's a definite potential that we could go back to the deaths and the serious injuries that we saw pre-Roe.
DON STENBERG: I think it's very important. I think that if the court would not uphold Nebraska's ban on "D and X" abortions, what the states would be told and the congress would be told is that you have no real authority to ban any form of abortion, no matter how barbaric, no matter how little used, and it is totally up to the discretion of a doctor, no matter how cruel a person he might be or what unusual manner of abortion might be dreamed up in the future.