Such familiar constitutional concepts as the right to privacy were not mentioned during the two hours, but the methods doctors use to dilate a pregnant woman’s cervix were discussed in detail, repeatedly.
What exactly was the procedure that the law, the Partial-Birth Abortion Ban Act of 2003, sought to prohibit, the justices wanted to know. When, if ever, was the procedure necessary? What would be the impact of banning it? What alternatives were available to women seeking second-trimester abortions and to doctors performing them?
Among the justices most interested in the medical details was the one whom both sides consider most likely to be in a position to control the outcome, Anthony M. Kennedy.
Justice Kennedy’s questioning suggested that he had not made up his mind, despite his strongly worded dissenting opinion when the court struck down Nebraska’s version of the federal law six years ago, and despite his obvious distaste for the procedure at issue. Instead, his questions suggested that he remained open to persuasion that the law placed doctors in legal jeopardy and imposed an unconstitutional burden on their patients’ right to terminate their pregnancies.
One example was his response to the assertion by Solicitor General Paul D. Clement that it was never necessary for doctors to use the banned procedure because a more common procedure, one not covered by the statute, “has been well tested and works every single time as a way to terminate the pregnancy.”
Justice Kennedy responded: “Well, but there is a risk if the uterine wall is compromised by cancer or some forms of pre-eclampsia and it’s very thin. There’s a risk of being punctured.”
His comment reflected arguments that the doctors challenging the law have made. They say that “partial-birth abortion” — known medically as both “intact dilation and evacuation” and “D and X,” for dilation and extraction — is often safer because the removal of an intact fetus avoids injury to the uterus. The more common method of second-trimester abortion, in which the fetus is dismembered, can leave behind bone fragments.
Whether Justice Kennedy was eventually persuaded remained unclear. In some respects, the arguments were as interesting for what did not occur as for what did.
For example, no member of the court appeared particularly interested in the plaintiffs’ effort to depict the federal law as a violation of the separation of powers and a threat to the “independence of the judiciary,” as Priscilla Smith, a lawyer for the Center for Reproductive Rights, described it. Ms. Smith’s point was that, since the court held in the Nebraska decision that a ban on the procedure must include a health exception, Congress should not be permitted to defy the court by failing to provide such an exception.
Ms. Smith represented doctors who successfully challenged the law in Federal District Court in Nebraska and before the United States Court of Appeals for the Eighth Circuit, in St. Louis. That case is Gonzales v. Carhart, No. 05-380. Eve C. Gartner, a senior staff attorney at Planned Parenthood, represented the clinics that successfully challenged the law in the federal courts in California. That case is Gonzales v. Planned Parenthood, No. 05-1382. The Bush administration appealed the two rulings to the Supreme Court.
Justice Samuel A. Alito Jr. did not ask any questions during the arguments. As the successor to Justice Sandra Day O’Connor, who voted with the 5-to-4 majority in the Nebraska case, Justice Alito is obviously in a position to play a central role. Justice Antonin Scalia, who can usually be counted on to carry the anti-abortion side of the argument, appeared unusually disengaged, limiting his intervention to a few comments.
Chief Justice John G. Roberts Jr., on the other hand, was active throughout the arguments. At times, he appeared to be trying to bolster the defense of the statute by the solicitor general. At other times, the chief justice appeared eager to find differences between the federal law and the Nebraska law. Differences in the way the state and federal laws defined the procedure could be the basis for a decision that upholds the federal law without disavowing a recent precedent.
Solicitor General Clement urged the justices to defer to the findings Congress made when it passed the law, including that the procedure is never medically necessary. “Those determinations should be upheld as long as they represent reasonable inferences based on substantial evidence in the Congressional record,” Mr. Clement said, adding that “that standard is amply satisfied here.”
Justice John Paul Stevens challenged the solicitor general. “Are not some of the findings by Congress clearly erroneous?” he asked. Justice Stevens gave the example of a finding that no medical schools provide instruction in the procedure, while in fact, a number of medical schools do teach it.
“I think the district court could effectively undermine that one finding,” Mr. Clement conceded.
With the court’s precedents requiring that abortion restrictions include an exception for medical necessity, the outcome of these cases may depend on how the majority defines necessity. There was considerable discussion of whether the procedure’s safety advantage was “significant” or only “marginal” and there was a constitutional difference between the two.
Justice Stephen G. Breyer, who wrote the court’s decision in the Nebraska case, asked whether the court might rule that the procedure could be used “only where appropriate medical opinion finds it necessary.” Justice Breyer added: “Now, if Congress is right, there will be no such case, so it’s no problem. But if Congress is wrong, then the doctor will be able to perform the procedure and Congress couldn’t object.”