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WASHINGTON -- The Supreme Court was packed and demonstrators gathered outside under drizzly skies Wednesday as the justices heard arguments in what probably will be two of the most significant abortion rights cases in decades.
The disputes over Congress' ban of a procedure it calls "partial birth" abortion represent a key test of whether the court led by Chief Justice John Roberts will take a harder line against abortion rights now that Justice Sandra Day O'Connor, a key supporter of such rights, has retired.
However, as the two-hour court session played out, neither Roberts nor the conservative justice who replaced O'Connor, Samuel Alito, were the key players. Instead, everything seemed choreographed around Anthony Kennedy, the justice who is at the ideological center of the divided, nine-member court. Kennedy, who has supported abortion rights but voted against striking down a state ban on "partial birth" abortion six years ago, is widely viewed as the key vote in the cases.
As he seemed to struggle with whether the Republican-led Congress' ban on the midterm procedure should be upheld, lawyers in the case focused on him in their arguments. Liberal justices such as Ruth Bader Ginsburg and John Paul Stevens suggested the ban restricted the right to abortion and appeared to try to lure Kennedy to their side by asking leading questions of lawyers.
In 2000, the court rejected state bans on "partial birth" abortion that did not include an exception for situations in which a woman's health was in danger. A key issue Wednesday was whether Congress can outlaw the procedure by declaring that it is "never" necessary for maternal health.
Kennedy expressed concern about how often the banned method -- known medically as "intact dilation and evacuation" or "dilation and extraction" -- is used and whether alternatives are readily available. The procedure involves removing a fetus so it partially emerges from the vagina intact, rather than dismembering the fetus in the uterus.
The court's 350-seat courtroom was filled; members of the public began lining up at 3:30 p.m. Tuesday for a chance to hear the arguments. Scores of protesters from both sides of the abortion debate, along with TV news crews and others who failed to get a prized seat inside, gathered in front of the building.
The arguments were jarringly broken 40 minutes into the session by the screaming of a spectator who opposed abortion. Several police officers wrestled him out of the courtroom.
Roberts, who appeared to support the ban, asked several questions, but the court's other conservatives were unusually quiet. Alito said nothing; the usually talkative Antonin Scalia made few queries. (Another conservative, Clarence Thomas, was absent because of illness; Roberts said Thomas would still participate in the case.)
The conservatives seemed content to let U.S. Solicitor General Paul Clement defend the 2003 ban. "Congress was entitled to make a judgment ... to ban a particularly gruesome procedure that blurred the line between abortion and infanticide," he said.
Kennedy, who often votes with the conservatives, has vacillated on abortion. In 1989, he joined an opinion that would have undermined Roe v. Wade. In 1992, he reversed course and became the critical fifth vote to uphold Roe. In 2000, he split from his abortion rights colleagues and dissented from the ruling that said states could not ban the procedure without a health exception.
Kennedy's comments Wednesday suggested he is not locked into that position, but it was unclear how he might vote. "In how many ... instances is there serious health risk to the mother that requires the procedure, as opposed to (it) simply being an elective procedure?" he asked.
Priscilla Smith, representing Nebraska physician LeRoy Carhart, said no hard data exist. But she said that for some doctors whose patients face cancer, hemorrhaging or other serious medical conditions, the procedure is common.
Lawyer Eve Gartner, representing Planned Parenthood Federation of America, said that although the number of women affected by the ban might not be high, "in some cases, this procedure averts catastrophic health consequences for the woman."
Some of Kennedy's questions suggested he was worried about the risks to women who might not have access to the procedure some physicians say is more protective of a woman's uterus. He also seemed concerned that doctors might inadvertently violate the law by starting to do one procedure, then ending up doing the banned one.
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