A steady spring rain did not wash out the demonstrations. They were here to oppose abortion. They were here to support the right to choose. They were here because a Nebraska doctor was challenging a Nebraska law. It was in 1997 Dr. LeRoy Carhart stopped doing any abortions, the day Governor Ben Nelson signed the law designed to ban a specific procedure. He believed then and still does, the law was intended to ban all abortion and could have landed him in prison.
[Dr. LeRoy Carhart] "My feeling was very strong when I saw the bill that Governor Nelson signed was that this law meant that we could not do abortions in the state of Nebraska."
Nebraska's Attorney General (Don Stenberg) openly acknowledges that he would like to ban all abortions, but claims the Nebraska law only stops the procedure opponents have labeled, "partial birth abortion."
[Don Stenberg] "The question we ultimately want the U.S. Supreme court to answer in this case is whether the Constitution of the United States guarantees a right to pull an unborn child from her mother's womb up to her neck and suck out the child's brains."
Stenberg was told by a federal district court and a federal appeals court that Nebraska's law was too flawed to be a valid limit on abortion. Stenberg took the case to the U.S. Supreme Court.
[Stenberg] "To me, it is inconceivable that the Constitution of any civilized nation to guarantee a right to such a barbaric act."
It is the wording and the intent of Legislative Bill 23 that brought this Nebraska law before the high court. It was approved by the Nebraska State Legislature in 1997 using the unspecific, but now well-known label of "partial birth abortion" when making the procedure illegal. In a brief filed in the weeks prior to this week's argument, Stenberg wrote that the Nebraska ban on partial birth abortion did not prohibit other procedures used to end a pregnancy.
[Stenberg] "A careful analysis of the exact words of our statute makes clear that it was only intended to ban partial birth or D&X abortions."
Moreover, the Attorney General argues because the procedure is rare and its ban would not create a health risk to patients, there is no undue burden on women seeking abortions.
[Stenberg] "Our argument is the prohibiting D&X abortions except to save the life of the mother is not an undue burden because a partial birth abortion is a little used, particularly barbaric form of abortion and there are safe alternatives available to a woman desiring an abortion."
Stenberg wrote: "The State of Nebraska does not believe the court ever envisioned sanctioning the destruction of human infants delivered all but inches outside the womb." Dr. Carhart's legal team, led by the Center for Reproductive Law & Policy, claimed the law so vaguely describes the procedure that it does amount to an undue burden.
[Jerry Hugg] "We all as citizen's of the state of Nebraska have a duty to understand what is going on in the legislature and understand the effect that legislation has irregardless of our moral position."
In the pre-hearing brief filed by Carhart's attorney, they argue both the bill's wording and the public debate make clear the intent was to ban most abortions.
[Allan Stoller] "I mean we're in agreement with how the court has analyzed this legislation, has analyzed whether or not it creates an undue burden, has analyzed whether or not it's over broadening and encompasses more than just what is being said as to the purpose of the legislation."
The pro-choice attorneys also argue the law violates a woman's right to privacy, threatens the health of patients, and comes in a package so vaguely written, it's open for constant reinterpretation.
[Stoller] "This type of legislation is an undue burden upon a woman's right to choose to proceed with an abortion and it's in a woman's best interest that medically for her health status that this procedure be available if she makes the choice to proceed accordingly."
Carhart's attorneys wrote, "Nebraska's ban on partial birth abortion was enacted as part of a deceptive nationwide campaign to evisserate the key protections guaranteed to American women."
So went the arguments that brought the two parties before the high court on Tuesday. Inside the court chambers, Stenberg had barely begun his opening arguments when the justices began peppering him with questions. The Attorney General repeated his contention that states should have latitude to outlaw a form of abortion that in his view borders on infanticide. Use of that word prompts Justice Ruth Bader-Ginsberg to ask, "I thought this law only applied to pre-viability abortions." (Meaning abortions done before the fetus is able to survive outside the mother's womb.) Stenberg replied, "yes it does, but the state has the interest in drawing the line between infanticide and abortion." Justice John Paul Stevens wondered why that interest was not already served by Nebraska's existing law banning abortions after the fetus is viable, except to save the life of the mother. Interrupting in Stenberg's defense was Justice Antonin Scalia, an anti-abortion activist on the court. "I thought you meant this procedure looks more like infanticide because the child is killed outside the womb." "Precisely," responded Stenberg. One of the important swing votes in this case, Justice Sandra Day O'Conner seemed concerned that the state's law might also ban a commonly used procedure called D & E. "Do you take the position that the state could also prohibit D & E procedures from pre-viability abortions?" When Stenberg hesitated, O'Conner pressed him, "yes or no." "For the purpose of this case, no," answered the Attorney General. "The state could not outlaw the D & E procedure." O'Conner continued. "It's rather difficult to read the statute and see that as so. Both procedures are rather gruesome, but it's not clear that the state is not prohibiting the D & E procedure as well." Stenberg's reply, "the state Attorney General interprets the law and that is how he has interpreted it." At one point, Justice Ginsberg added, "this law seems out of the bounds the court has set." Justice Anthony Kennedy, another key vote, wondered if the Attorney General made any effort to specify that the Nebraska law did not cover other procedures. "Has your office taken the position that this law does not apply to D & E abortions?" "No," said Stenberg. Justice O'Connor zeroed in on why the Nebraska legislation contained no exception for the use of the procedure in cases where it could protect the health of the mother. Stenberg replied, it wasn't necessary because "there is no medical necessity for D & X abortions." O'Connor, "there was no medical testimony that this procedure might be necessary?" Stenberg, "there was, but I would regard that testimony as speculation." Stenberg's argument is that where there are conflicting views on such matters in the medical community, it is best to defer it to the judgement of the state legislature.
[Stenberg] "It is our sincere hope that the court will hear our arguments, will recognize that this is a practice that is not supported by either the American Medical Association nor by the American College of Gynecologists and Obstetricians, that it is a procedure that the medical experts have said is never necessary to save the life or preserve the health of the mother."
[Simon Heller] "This is not legislation that the AMA drafted, it was drafted by the National Right to Life Committee. It was not endorsed by the American College of Obstetricians and Gynecologists, the specialists in treating women. They oppose this legislation everywhere including in Nebraska."
Simon Heller spoke on behalf of Dr. Leroy Carhart before the Supreme Court.
[Heller] "Each of us if we were going into surgery or getting treatment from a physician would want the safest possible care from our doctor. Women attaining abortions have to have the same right to the safest care from their doctors."
Heller contends that Nebraska's law is so broadly written it could prohibit most second trimester abortions performed in the state of Nebraska. Justice Scalia proved to be a hostile questioner. "How could a D & E abortion be construed as a D & X abortion?" When Heller explained that in order to reduce the risk of infection to the mother, Carhart performs both D & E and D & X procedures in a similar manner. Scholea shot back. "So the AMA is just confused in its concerns about D & X?" Heller noted that the federal appeals court that earlier reviewed this case also felt Nebraska's legal description of the procedures left room for confusion. Justice Ginsberg, "all of this would be out of the case if the Legislature had banned D & X procedure instead of using other language." Heller agreed. "The Legislature specifically rejected an amendment that would have limited the ban to D & X procedures." When Heller added that the states should have an interest in promoting fetal life and the health of the mother, Scalia launched, "Why is it not appropriate for the states to be concerned about rendering society callous to infanticide to the horror of seeing a live human creature outside the womb dismembered." Heller stood his ground. "Nebraska protects the fetus if it can survive outside the womb." The abortion doctor's attorney concluded by arguing that Nebraska's law was an undue burden because it put the health of the mother in second place behind the fetus that could not survive outside the womb.
[Heller] "So this is an extreme measure designed to overturn Roe versus Wade and end the right to abortion in the United States."
On the steps of the Supreme Court building in a driving rain, both sides lined up before banks of reporters to give their post-game analysis.
[Janet Benshoof, Center for Reproductive Law] "This was a case that you heard today about early abortion and a case about subjecting women's health interests to a political agenda. And I think that caught the entire court's attention."
[Stenberg] "This horrific procedure resulted in 30 state legislatures in a matter of just a few years passing laws to prohibit this abominable procedure that has no place in a civilized society."
[Carhart] "I think it's important that we try to prevail. I think we will prevail. But you know, we're not the bad guys in this issue. The deceptiveness is coming from the state."
The demonstrators outside were as divided as the legal opponents on the inside of the Supreme Court Building. The justices are expected to hand down their ruling by the end of June.

For documents pretaining to this hearing click on the documents below:

Stenberg Court Brief

Carhart Court Brief

Nebraska's Partial Birth Abortion Ban Statute