Even on one of the busiest news days in years—election returns trickling in, the secretary of Defense ousted, the president admitting to an electoral “thumping”—the Supreme Court delivered its own drama with today’s arguments over the federal Partial-Birth Abortion Ban Act. In two cases, Gonzales v. Carhart and Gonzales v. Planned Parenthood , the government argued that Congress has the right to ban what is sees as a barbaric medical procedure. “This is not about fetal demise in utero,” said U.S. Solicitor General Paul Clement in summing up his points. “This is about something far closer to infanticide.” The pro-choice lawyers arguing on behalf of abortion providers saw it differently. Priscilla Smith and Eve Gartner argued that Congress had drawn “blatantly false” conclusions in drafting the law. If the high court allows the law to stand, warned Gartner, “it would set the stage for continued legislative efforts [against abortion] … until there is nothing left.”
And then there were the protesters. No, not the ones gathered outside in the November drizzle. According to several witnesses, one man, clad in a shirt that read JESUS, entered the courtroom and sat in the spectator section midway through oral arguments. The Supreme Court marshals must’ve been expecting trouble from the start. Though they usually issue all the standard warnings about being quiet and exiting in an orderly way in case of an emergency, they added an extra caveat this morning: anyone causing a disruption would be escorted from the courtroom and arrested. Things proceeded normally enough for a while. But then, during the time allotted to Smith, the pro-choice lawyer arguing on behalf of Nebraska abortion provider Dr. Leroy Carhart, the man erupted. "ABORTION!" he thundered in a voice that reverberated in the quiet and still courtroom. "REPENT OR YOU WILL PERISH," he went on. He grabbed the arm of Carhart, who happened to be seated next to him and pulled him to the ground. The protester continued yelling as uniformed officers descended on him and dragged him from the room. His shouts could be heard echoing through the building even as the legal arguments resumed. (Later identified by wire services as Rives Miller Grogan of Los Angeles, the man was arrested and charged under a law that makes it a crime to "harangue" inside the Supreme Court.) It was an extremely rare disruption in a normally sacrosanct space that bans even electronic devices from the room. Chief Justice John Roberts drew polite laughs when he then offered Smith three extra minutes to make her case.
There was plenty of legal excitement, too. At times, the arguments sounded like a medical seminar, with the justices asking detailed questions about how far a woman’s cervix must be dilated to undergo different abortion procedures. (The term "partial-birth abortion" refers to the medical procedure known as intact dilation and evacuation or dilation and extraction. In this procedure the fetus is partially removed from the womb, usually feet first, and then the contents of the skull are suctioned out before the rest of the body is removed.)
They also discussed which parts of the fetus could be removed from the womb before the procedure would be considered a delivery, debating whether a “spatial dimension” to the law was reasonable. And they quizzed the lawyers about the conflicting medical opinions on the procedure.
Justices Ruth Bader Ginsburg, John Paul Stevens and David Souter seemed to ask questions largely sympathetic to the abortion-rights attorneys. Stephen Breyer asked longer questions that seemed fairly sympathetic, too. At one point he noted that there was much in the case supporting Smith’s argument, but added: “Congress made this finding. What am I to do with the finding?” Justice Antonin Scalia chimed in only a few times—rare for this often loquacious justice. “We don’t talk about the leg dying, we talk about the fetus dying,” he said at one point, when the discussion turned to which body parts might be extracted first. Justice Clarence Thomas was ill and did not attend the argument, though Roberts announced Thomas would review transcripts and would still cast a vote. Newcomer Justice Samuel Alito did not ask any questions at all. The bulk of the questioning, though, came from Roberts and Justice Anthony Kennedy, who seemed to be genuinely trying to make up their minds. Roberts asked a number of times whether there was evidence to show that the banned procedure was significantly safer than other procedures.
Clement argued that Congress had held six hearings and concluded the so-called partial-birth procedure was never “medically necessary.” He also minimized the impact of the law, saying Congress “didn’t go after the dog, so to speak, it went after the tail,” and said women still have access to other abortion procedures. And Clement argued that Congress wanted to draw a “bright line” about what was abortion and what was infanticide. If a fetus was alive, Clement said, “if someone came in and ripped its head open, I think we would call that murder.”
Smith and Gartner detailed the health risks women could face if their doctors were not free to choose the best medical procedure for them. “The numbers are not high of any complications, but the complications when they occur are devastating,” said Smith. The women argued that doctors needed the leeway to make medical decisions on the fly and that they may not end up doing the procedure they set out to do. They also said that the law was vague enough to affect many second-trimester abortions.
When the court last addressed the question of this type of abortion ban in 2000—in a Nebraska case also involving Dr. Carhart—former Justice Sandra Day O’Connor cast the deciding vote in a 5-4 decision. The court ruled that such bans must offer an exception to protect the health—not just the life—of the woman. In that case, Justice Kennedy took the other side. But Congress took up the matter again, holding hearings and passing a law that declared that the technique is “never medically indicated.” Now all eyes are on Kennedy to see whether he might switch his vote. He could base his change on the argument that courts must adhere to precedent, a principle known as stare decisis . Kennedy’s dissent in the Nebraska case was also based on the importance of deferring to state interests, something this federal law does not do. And it’s also possible that Kennedy could change his mind on the health issues alone if he weighs new evidence.
Though the odds seem slim, some pro-choice activists were also watching the two new justices—Roberts and Alito—to see if either might take their side since they have no real high-court record on this particular issue. Both are believed to be abortion opponents, but both promised during confirmation hearings to consider the issues before them fairly. So far, Roberts seems to fit his image as an incrementalist who prefers not to make sweeping rulings. Last term he managed to get the court to come together in a striking number of unanimous decisions based on narrow grounds. That could prove more difficult in divisive cases like these, however. Alito seems less likely to overturn the federal abortion ban, but he also has said he respects stare decisis . “This is a court that has not made up its mind,” says attorney Janet Crepps, who helped try the case for the Center for Reproductive Rights.
The arguments came on a day when pro-choice activists were celebrating big electoral wins. They not only won a South Dakota referendum that rolled back a ban on nearly all abortions in the state, but they also defeated ballot measures that would have required parental notification in California and Oregon. And Naral Pro-Choice America announced that there were 20 new pro-choice lawmakers elected to the House. “There’s a mood in the country,” NOW president Kim Gandy said on the steps of the high court after the arguments. “I only hope the justices will have the same wisdom,” chimed in former Naral president Kate Michelman. On the sidewalk nearby, pro-life protesters gathered to sing and pray, or just to stand silently, their mouths sealed with red tape. They too, hoped for a win in the end. Roberts might have asked a lot of questions, said Anita Staver, president of Liberty Counsel, a pro-life public interest law firm. “But he is very much a diplomat. He is just being his typical polite self.” Both sides will find out where Roberts and his fellow justices really stand in the coming months. The decision will likely be released next year.