Supreme Court Considers Ban on Safe Abortion Procedures

April 25, 2000 12:00 am

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WASHINGTON — In a case that will shape the contours of the constitutional right to abortion for years to come, the Supreme Court today will hear arguments about a law that deprives women of their overriding right to have an abortion by the method that best protects their health.

At issue in Stenberg v. Carhart is a Nebraska law banning what anti-choice activists call “partial-birth abortion.” But in a friend-of-the-court brief submitted in the case, the American Civil Liberties Union said that the ban impedes women’s access to abortion and exposes them to health risks without the slightest justification.

“The real problem here,” said Catherine Weiss, Director of the ACLU’s Reproductive Freedom Project, “is that this law prohibits an array of safe and common abortion procedures used throughout pregnancy. It is not a ban on one particular method. Effectively, it is a ban on abortion.”

To date, 31 states, including Nebraska, have enacted similar bans. Medical providers have challenged these laws in 21 states, and in 19 of these the courts have completely blocked or limited their enforcement, in part because of their broad reach.

In the Nebraska case, the U.S. Court of Appeals for the Eighth Circuit held that the term “partial-birth abortion,” “though widely used by lawmakers and in the popular press, has no fixed medical or legal content” and that the law would “prohibit, in many circumstances, the most common method of second-trimester abortion.”

Moreover, the ACLU said, even if the ban were somehow construed to prohibit only one procedure, as the state argues, it would force some women into riskier abortions.

“There will always be some women for whom a banned procedure is the safest. The Constitution protects a woman’s right to end her pregnancy by the method that is best for her health,” Weiss said.

In its brief, the ACLU argues that Nebraska “lacks even a legitimate interest in the ban it is defending.” The ban undermines rather than advances any interest in women’s health, and it does not even purport to protect the potential life of the fetus. Instead it would steer women from safer to riskier methods of abortion.

Furthermore, the ACLU answers the state’s claim that the allegedly targeted technique is offensive by pointing out that “if repugnance alone were sufficient to support bans on various abortion procedures, a woman’s right to obtain a safe and legal abortion would soon disappear.”

A ruling is expected by the end of the Supreme Court term in June or early July.

The ACLU’s friend-of-the-court brief is available on line at

The case is Stenberg v. Carhart, No. 99-830. The ACLU brief was written by Catherine Weiss, Talcott Camp, Julie E. Sternberg, Steven R. Shapiro, and Colleen K. Connell.

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