Reported for Statewide by Bill Kelly.
[Maurstad] "The definition of a partial birth abortion is ammended...."
June 1997 in the chambers of the Nebraska legislature, a bill that many thought would be the most contentious of the session, passed with only one no vote. State Senator Dave Maurstad of Beatrice authored Nebraska's ban on partial birth abortion.
[Maurstad] "There is no medical reason that this procedure or technique would have to be performed."
[Shelly Keil] "I believe that the constitutionality of the legislation would be certainly in question if we did not include health of the mother. The Supreme Court has said that you must include that in any kind of bill where you restrict abortions. I would hope that we would have support beforehand instead of having to litigate it in the courts."
The session had been punctuated by emotional testimony from both sides. Vikki Stella of Illinois told senators the procedure was her only option.
[Vikki Stella] "It's a terrible pain and having to make the decision to protect my life and most of all my health, I'm an insulin dependent diabetic. Other ways just wouldn't have been what my doctor felt was necessary. As a diabetic, I don't heal as well as other people, infections can be deadly. This was the safest procedure for me."
Three years later, now Lieutenant Governor Dave Maurstad still believes the legislation serves the State's best interest.
[Maurstad] "I think it shocks the consciousness of Nebraskans. I think that most Nebraskans are number one not supportive of abortion, would like to see the number of abortions reduced and eliminated."
An unmarked, unassuming building in Bellevue is one of only three locations in Nebraska where abortions are performed.
[Dr. LeRoy Carhart] "I feel very strongly that a woman has the right to choose when and when not she brings a child into the world."
Dr. LeRoy Carhart is the physician here.
[Dr. Carhart] "Being pregnant and going through childbirth, when you don't want to be pregnant, first of all is probably the most risky health environment that a woman is in during her lifetime if she's a non-smoker. To make someone go through that when they don't want to, in my mind is, really cruel and unusual punishment."
It is this doctor's name on the docket before the U.S. Supreme Court, Carhart vs. Nebraska Attorney General Don Stenberg.
[Dr. Carhart] "I never pictured myself in this kind of position. I think if I had a choice now, I would rather it be someone else and I could sit back and watch what is happening, but it's so important to myself and so important to the women in this state and women of the United States."
Dr. Carhart went on to a federal district judge and argued Nebraska's law created an unconstitutional barrier to women getting an abortion as allowed by Roe vs. Wade. And a federal district court agreed. Judge Richard Kopf ruled Nebraska's laws banning partial birth abortion put Dr. Carhart's patients at risk. A federal appeals court backed him up. In a different part of the country in a different federal court, partial birth abortion bans in Illinois and Wisconsin were ruled constitutional. That put two different sets of laws in conflict with each other. The Supreme Court will resolve the matter by reviewing Nebraska's law to see if it puts women at an undue burden as specified in the landmark decision Roe vs. Wade.
[Atty. Gen. Don Stenberg] "If the states can ban anything, then surely they can ban the barbaric practice of basically pulling a baby to pieces as Dr. Carhart described in his testimony in that case."
Nebraska's Attorney General Don Stenberg will argue the case in favor of the abortion ban.
[Atty. Gen. Stenberg] "It is my sincere hope the case of Stenberg versus Carhart, will come to stand for the proposition of the State of Nebraska and all the other states of our nation have the constitutional authority to ban partial birth abortions. "
Last month he filed a 50-page brief explaining Nebraska's position to the Supreme Court justices. It describes the procedure medically termed dilation and extraction or D&X and claimed it as "medically unnecessary and disturbing close to infanticide."
[Atty. Gen. Stenberg] "Our argument is that 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."
To make that point, Stenberg solicited the help of Family First, a conservative advocacy group. It's Nebraska's leader as a former aide of Stenberg's, Dan Parsons.
[Dan Parsons] "If the sentiments of your neighbor and my neighbor is correct, this is where we draw the line in this country on a woman's right to choose."
In a friend of the court brief filed by a Chicago attorney on behalf of the group, Family First argues there is statistical proof that the ban on D&X abortions do not hinder women from getting other types of procedures to end pregnancies. "...fears of being prosecuted for performing conventional abortion procedures are baseless."
[Parsons] "The Nebraska case, most legal experts around the country agreed that this was a test case that embodied this scope of law that was being passed in 30 some states that intent was very clear. That this is the case that ought to be before the Supreme Court and ought to be tested to see if the states do have the legal right to ban this specific form of abortion."
[Dr. Carhart] "Now, for doing an abortion the safest way possible, the penalty is a $25,000 fine, 20 years in jail, and Class III felony charge. I think Judge Posner in the seventh district verdict said, 'Anyone who would do abortions under this law would be foolish, and I agree with him.'"
Dr. Carhart's attorney, Allan Stoller, will work with the Center for Reproductive Law in arguing the case before the Supreme Court.
[Allan Stoller] "We're asking that the rulings that have been made by the federal district judge and upheld on review on appeal are the correct rulings. So it's-- we're in agreement with how the court has analyzed this legislation, has analyzed whether it creates an undue burden, has analyzed whether it's overbroad and encompasses more than just what is being said as to the purpose of the legislation."
Jerry Hugg helped prepare the case.
[Jerry Hugg] "The statute is overbroad as it is written. The testimony and the evidence submitted to the district court in Lincoln, in both the preliminary injunction hearing and the trial on the merits, frankly showed that the wording of the statute banned essentially every form of abortion that would be provided in the state of Nebraska."
[Steve Emmert, Planned Parenthood, Omaha] "They really wanted to ban one specific procedure. They certainly had every opportunity to amend this piece of legislation to state that they were opposed to one specific procedure. They purposely did not."
Dr. Carhart's case gets support from Planned Parenthood of Omaha. The family planning group's executive director believes the Nebraska law would lead to greater restrictions in a state with few providers of abortion.
[Emmert] "I think they just went out of their way to make it purposely vague in the hopes that the Supreme Court would decide that the foundations of Roe are to be reversed."
There could not be two more wildly differing interpretations of the same law and the consequences. The Nebraska law is upheld if partial birth abortion is banned here and in every other state that has passed similar laws.
[Dr. Carhart] "If that happens, then we go back to women traveling to New York, traveling to states where abortion becomes legal. The rich women can afford to have abortions. The poor women will attempt to have local abortions and I'm sure we're going to see the deaths and the injuries and the sickness from women attempting to terminate their pregnancies themselves or through another illegal means is causing them physical harm."
[Parsons] "Those on the other side of the argument have probably overstated the argument that this will impact thousands and thousands of women and their ability to choose whether they carry that baby to term or not. I think that's been overstated. I think in the political realm of things, that's probably not going to happen if this ban does become law."
[Atty. Gen. Stenberg] "The language of the court's decision will also likely give us some guidance on what additional activities the legislatures might take to restrict other forms of abortion and abortion in other circumstances. "
What if a majority of the justices rule the Nebraska law is unconstitutional?
[Atty. Gen. Stenberg] "Well, if we don't win this case, I think what basically the U.S. Supreme Court would be saying is that any significant restriction on abortion is an undue burden and that states are basically left unable to restrict abortions in any means or form."
[Parsons] "Frankly, it's not a pleasant thought for those of us in the pro- life movement to be able to stem the tide of a culture of death in this nation."
[Emmert] "I would hope that the message would be enough is enough."
[Dr. Carhart] "The most we can hope for, as so we can get back to where we were before these bills were coming out and allow the doctor and the woman to make the safest choice of what she needs medically and then proceed without the state putting themselves in the middle of that relationship."
The attorneys head to Washington D.C. on April 25th to make their case before the United States Supreme Court.

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For more information on the abortion debage click here.

Captioning by Nebraska Captioning Center, Lincoln, Nebraska .