Solicitor General Paul Clement
Art Lien / NBC News
Solicitor General Paul Clement argues before Supreme Court in Gonzales v Carhart.
updated 11/8/2006 11:16:34 PM ET 2006-11-09T04:16:34

Supreme Court justices Wednesday sharply questioned attorneys on both sides of the legal battle over late-term abortions as the high court weighed whether to uphold Congress's ban on the procedure.

In an intense morning of arguments, lawyers for the Bush administration and supporters of abortion rights gave starkly contrasting views the medical procedure that opponents call partial-birth abortion. A law passed by Congress labels it a gruesome and inhumane practice. Supporters argue that such late-term abortions sometimes are the safest for women.

A man in the audience began shouting midway through the proceedings, disrupting the hearing briefly before security guards dragged from the premises.

Justice Samuel Alito, hearing his first abortion cases since joing the court earlier this year, sat silently through two hours of arguments. Justice Clarence Thomas was sick and did not attend, Chief Justice John Roberts announced.

Questioning from the bench
Seven justices took part in questioning both sides about whether the court should defer to congressional findings that these abortions are never medically necessary. Abortion advocates disagree, saying there is strong medical evidence to the contrary.

"We have no evidence in the record" as to how often such a situation arises? Roberts asked.

"No, your honor," replied attorney Priscilla Smith, arguing on behalf of the supporters of the abortion method being debated in the case.

At issue is the fate of the Partial-Birth Abortion Ban Act, which Congress passed and President Bush signed into law in 2003.

Six federal courts on both coasts and in the Midwest have struck down the law as an impermissible restriction on a woman's constitutional right to an abortion that the Supreme Court established in its landmark Roe v. Wade ruling in 1973.

A day earlier, abortion was on several state ballots. In South Dakota, voters repealed a state law that virtually outlaws abortions, an issue that itself could end up before the court.

California and Oregon voters rejected measures that would have required that teenagers get their parents' consent before having an abortion.

Public interest undeterred
A long line of people hoping for a seat inside stretched across the court's plaza hours before the session was to begin. Dozens of people camped through a rainy night in Washington to ensure their place near the head of the line.

Partial-birth abortion is not a medical term, but abortion opponents say it accurately describes "a rarely used and gruesome late-term abortion procedure that resembles infanticide," as Solicitor General Paul Clement said in court papers. Clement will argue the case for the administration.

Abortion-rights proponents dispute almost every aspect of the government's case, including the name for the procedure. They say the law has a much broader reach than the government claims and would threaten almost all abortions that take place after the third month of pregnancy.

Doctors most often refer to the procedure as a dilation and extraction or an intact dilation and evacuation abortion. It involves partially extracting a fetus from the uterus, then cutting or crushing its skull.

The procedure appears to take place most often in the middle third of pregnancy. There are a few thousand such abortions, according to rough estimates, out of more than 1.25 million abortions in the United States annually. Ninety percent of all abortions occur in the first 12 weeks of pregnancy, and are not at issue.

Return to the court
By a 5-4 vote, the court invalidated a similar law in Nebraska in 2000 because it encompassed other abortion methods and did not contain an exception that would allow the procedure to preserve a woman's health, an underpinning of Supreme Court abortion rulings.

Two things have changed in the past six years, the composition of the court and Congress' involvement in the issue by tailoring a law to overcome the objections raised by justices in the Nebraska case.

Abortion opponents are optimistic the court will uphold the law because Justice Sandra Day O'Connor, part of the majority in the 2000 case, has retired and her place was taken by Justice Samuel Alito.

Bush appointed both Roberts and Alito, and most legal analysts believe that neither man will be especially supportive of abortion rights.

Justice Anthony Kennedy, the court's swing voter following O'Connor's departure, dissented so strongly in the Nebraska case that many court observers believe he is unlikely to switch sides.

The congressional ban attempts to define the type of abortion more precisely and also declares that the procedure is never medically necessary, eliminating the need for a health exception.

Planned Parenthood of America and other abortion-rights supporters are hopeful that the court's respect for its own prior rulings and substantial evidence presented at three trials will overcome the administration's contention that Congress' pronouncements on abortion should carry special weight.

As it does in other high-profile cases, the court will release audio tapes of the proceedings shortly after the arguments conclude.

The cases are Gonzales v. Carhart, 05-380, and Gonzales v. Planned Parenthood, 05-1382.

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Video: High Court takes on late-term abortion

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