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Constitutional arguments took a back seat to medical details Wednesday as the Supreme Court heard arguments in a pair of hot-button cases challenging the federal ban on “partial birth abortion.” Several justices, including Justice Anthony Kennedy, the crucial swing vote on the issue, appeared intensely interested in whether practical alternatives to the controversial procedure exist. Because of the emergency nature of the procedure, Kennedy also indicated that he was concerned that if the law is upheld, a woman who needs the procedure would not be able to challenge the ban quickly enough to avoid being harmed. Kennedy also seemed troubled by the fact that a doctor could run afoul of the law even if he started an abortion with “good-faith intent” to use a legal procedure. Medical necessity, he feared, might require the doctor to switch gears and use the illegal procedure, in which the live fetus is destroyed after most of its body is outside the mother’s body. Because of the new composition of the Court, opponents of the law will need Kennedy’s vote to form a majority to affirm rulings by the U.S. Courts of Appeal for the 8th Circuit and 9th Circuit, which struck the law down. When the Supreme Court struck down a similar Nebraska statute in the 2000 Stenberg v. Carhart decision, Kennedy was in dissent. So Kennedy was in the spotlight throughout the arguments Wednesday in Gonzales v. Carhart and Gonzales v. Planned Parenthood. At one point, Justice David Souter appeared to go out of his way to remind Kennedy of his stance in favor of abortion rights in the 1992 Casey v. Planned Parenthood decision. And both lawyers arguing against the law — Priscilla Smith of the Center for Reproductive Rights and Eve Gartner of the Planned Parenthood Federation of America — tailored their arguments to Kennedy by stressing the harm to the Court’s precedents and to women’s health if the law is upheld. Striking down the law and upholding Stenberg, Smith told the Court, was the only course of action that “preserved judicial independence, that exemplifies the importance of stare decisis, not to mention the only course that will protect women from needless risks of uterine perforation, infertility, sepsis, and hemorrhage.” But the justices asked no questions relating to the issue of congressional defiance of the Court, sticking with medical questions throughout. “I think Justice Kennedy appreciated today what he did not appreciate six years ago, namely the issue of women’s health,” said Roger Evans of Planned Parenthood after the arguments. After hearing the justices’ concerns, Solicitor General Paul Clement appeared to shift gears in his defense of the law by arguing that doctors performing abortions could easily avoid violating the law and still perform the controversial dilation and extraction, or D&X, procedure that the law apparently forbids. Noting that the law forbids using the procedure on a living fetus, Clement said, “If a doctor really thinks the D&X procedure is the way to go, he can induce fetal demise at the outset of the procedure.” In other words, if the physician, through an injection, ends the life of the fetus at the beginning, she could perform the otherwise illegal procedure. But the lawyers attacking the law replied that injecting the fetus is not always a safe option and that the law is still vague enough that doctors would hesitate to use their judgment out of fear of violating it. The two hours of argument were interrupted briefly when a man in the packed spectator section stood up and began shouting loudly about the evils of abortion. As Court police moved quickly to remove him, the man grabbed a chair and kept shouting. His tirade was audible for several minutes even after he was taken out. The justices appeared unfazed, and Chief Justice John Roberts Jr. made no comment except to say he would give Smith, the lawyer addressing the Court when the shouting started, an extra 30 seconds of argument time. The man arrested was Rives Grogan of Los Angeles, according to a Court spokesman. He was charged with violating 40 U.S.C.�6134, which makes it illegal to “make a harangue or oration, or utter loud, threatening, or abusive language in the Supreme Court Building or grounds.” Another surprise Wednesday was the absence of Justice Clarence Thomas from the arguments. As the Court session began, Roberts announced that Thomas was ill but would participate in the case by reviewing transcripts of the oral argument. Thomas rarely asks questions anyway, and in his absence it was Justice Samuel Alito Jr.’s turn to stay silent, asking no questions during arguments in the first abortion case he has faced as a high court justice. Congress passed the partial-birth abortion law in 2003 in the aftermath of the Stenberg decision. That 5-4 decision said the Nebraska law banning so-called partial-birth abortion was an undue burden on the right to an abortion because its vague wording could be read to forbid many late-term abortions. The law was also flawed, the high court said, because it did not provide for an exception to the ban when the health of the mother was at stake. Abortion-rights groups in California and New York quickly challenged the federal law, as did LeRoy Carhart, the Nebraska doctor involved in the 2000 decision. In the California case, after a three-week trial, the judge rejected the congressional findings and ruled the law unconstitutional. In Nebraska and New York, also after extensive trials, the judges reached the same conclusions. The 9th, 8th, and 2nd circuits affirmed, but only the 9th Circuit and 8th Circuit rulings are before the high court.
Tony Mauro can be contacted at [email protected].

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