Cover Story

'God save the United States'

Infanticide | "This honorable court" is confronted again with abortion, the practice supposedly settled in 1973 with the high court's Roe vs. Wade ruling. Twenty-seven years later, the matter is far from closed. But this time pro-lifers are asking a more modest question: May it please the court, do states have the right to outlaw borderline infanticide? The case involves a Nebraska law against partial-birth abortion. As well-dressed lawyers for the state petitioned for justice inside the dignified courtroom, protesters outside in the cold rain petitioned God for the same result.

Issue: "Supreme Court dividing line," May 6, 2000

in Washington - "Oyez, oyez, oyez," the marshal intoned just as the clock struck 10 a.m. "God save the United States and this honorable court." The nine black-robed justices could have been excused had they muttered an "amen" under their breath. On this day they would be examining abortion for the first time in eight years. Their earlier rulings had allowed states to place narrow restrictions on abortions, so 30 state legislatures had moved to outlaw one procedure seen as especially gruesome and brutal: partial-birth abortions. But abortion backers were screaming that even this one small step was too large a leap. The specific law under review last week was that of Nebraska, where in 1997 a bill outlawing partial-birth abortion sailed through the legislature with just a single dissenting vote. The 8th Circuit Court of Appeals then overturned the will of the Nebraska lawmakers, arguing they had violated the right to privacy asserted in the Roe vs. Wade decision of 1973. Other courts, including the conservative 4th Circuit, disagreed, allowing bans in their jurisdiction to remain in effect. Given the dispute, the Supreme Court decided to review the Nebraska law and establish a precedent that would be binding nationwide. Oyez, oyez, oyez. God save the United States. Eight years of pent-up frustration at the high court's inaction began to bubble over on Easter morning. While hundreds of millions of Christians around the world gathered in their churches to celebrate life, several dozen from all over America descended on Washington for a grim deathwatch. Under bright spring skies, they assembled before the court for the beginning of a two-day, round-the-clock prayer vigil. Gathered around 20-foot-long signs with giant photos of aborted babies, they prayed-sometimes aloud, sometimes quietly in groups of two and three. Across the street, more than 300 white wooden crosses sprouted on the south lawn of the Capitol. At night, sleeping bags and blankets emerged from behind the signs, but the dozen or so protesters slept in shifts, worried at the possibility of clashes with pro-abortionists. Among the overnighters was Domineque Antonio, who drove in from Ohio. "We want to raise a voice for the innocent," she explained as she brushed her young daughter's dark brown hair. "We want to defend what's right and just and to educate the public about partial-birth abortion." "That's right, we want to educate the public as to what abortion really is," agreed her friend, Lynn Josefsen. "A lot of people don't know the truth. A lot of people are disturbed by these photos, and they get upset. We've been having this dialog on abortion for 20 years, and people still don't understand. When you see the pictures, you have to admit that's it's murdering an unborn child." The pictures themselves were something of a victory for pro-life forces. Last time the court heard a case tangentially related to the abortion issue, demonstrators and signs were banned from the sidewalks around the court because organizers had failed to obtain the proper permits. This time, they secured their permits months in advance, and the sidewalks became a sort of open-air little shop of horrors, graphically displaying larger-than-life photos of decapitated and dismembered babies. By early Tuesday morning, those same sidewalks resembled a war zone. The blue skies of Easter seemed a distant memory as a massive cold front brought driving rain and gusty winds. The rain had long been forecast, but many pro-life activists, caught unprepared, marched in front of the court wearing black garbage bags to protect against the elements. Organizers had forecast counterprotesters, and on this count they were ready. About a dozen women marched in circles with signs that read, alternately, "N.O.W." or "Keep abortion legal." "Pro-life, that's a lie; you don't care if women die," they chanted, trying to drown out the prayers and speeches of anti-abortion forces. But the pro-lifers were prepared. Cranking up the public-address system, a priest prayed loudly that the day's hearing would be the "first crack in the wall, the first step to ending all abortion." When one heavyset woman, clad in jeans and flannel, managed to find a megaphone, the priest was unflappable. "Ho, ho, hey, hey, abortion rights have got to stay," she screamed hoarsely as the priest prayed that the court would recognize every human being as worthy of life, "no matter how wrong they are, no matter how wicked they are." Despite the hundreds of pro-life activists in town, the two sides of the shouting match were evenly matched in terms of numbers, if not decibels. Most of the pro-lifers were literally above the fray, waiting in line for a chance to glimpse the court proceedings. By 8 a.m., an hour before the doors opened, the line snaked the entire way around the massive marble plaza in front of the court. At the head of the line were two young women with ankle-length skirts and multiple piercings. With every seat inside the court already spoken for, they had staked out their spot at 7 p.m. the night before, hoping to catch a three-minute glimpse of the historic argument. The scene inside the cavernous hall-all marble, brass, and polished wood-was considerably quieter than the confrontation on the sidewalk. But it was only slightly less tense. Don Stenberg, the Nebraska attorney general charged with defending his state's ban on partial-birth abortions, took the podium first. In just the third sentence of his introductory remarks, he called the procedure a "little-used form of abortion that borders on infanticide." Justice Ruth Bader Ginsburg pounced immediately, pointing out that Nebraska's law dealt with babies who were not yet viable outside the womb, anyway. How, she wondered, could that border on infanticide? The ardent feminist questioned Mr. Stenberg aggressively throughout his 30-minute time allotment, joined frequently by John Paul Stevens and David Souter. Eight of the nine justices interrupted at some point, with only Clarence Thomas, as usual, abstaining. Mr. Stenberg appeared rattled at times by the questioning. On at least three occasions, Antonin Scalia jumped into the fray, offering logical arguments and even citations from previous cases to refute the line of reasoning that Ms. Ginsburg was taking. "Yes, that's exactly right," Mr. Stenberg said repeatedly when Justice Scalia threw out a legal lifeline. Simon Heller, the lawyer representing a Nebraska abortionist who had sued to overturn the ban, got a little further into his opening statement. But not much. Mr. Scalia interrupted at least a dozen times to challenge the pro-abortion argument. He called partial-birth abortion "the killing of a living human creature outside the womb," and said that permitting it "renders society callous to infanticide." Court-watchers were not surprised by the passion of either Justice Ginsburg or Justice Scalia, whose votes in the case are a foregone conclusion. All eyes were on Sandra Day O'Connor and Anthony Kennedy, two moderates who can swing close votes to the right or the left. For those who try to divine votes from oral arguments-a notoriously inexact science-the questioning by Mrs. O'Connor was not encouraging to pro-lifers. Her main concern, as with the reliable liberals on the bench, seemed to be that the Nebraska statute was too broadly written. Nebraska's law describes, but does not name, a type of abortion known as dilation and extraction (D&X), in which the baby is partially delivered, its brains suctioned out, and its skull collapsed. All sides admit that the procedure is rare, given the high number of other abortions performed. A much more common type, dilation and evacuation (or D&E), takes place in the second trimester. Because D&E victims are often "partially" born-an arm or leg may extend out of the womb before being hacked off-the abortion lobby insists that this, too, would be restricted under laws against partial-birth abortion. Mrs. O'Connor repeatedly pressed that point: "Do you take the position that the state of Nebraska could also prohibit D&E abortions for pre-viability pregnancies?" she asked. Mr. Stenberg insisted that "for purposes of this case" he did not believe the law would outlaw D&E abortions, but Mrs. O'Connor would have none of it. "It is difficult to read the statute and think that is so," she shot back. With no decision expected until the end of June, she and the other justices will now have several months to make up their minds. In the meantime, outside the court, pro-life demonstrators faced a much tighter deadline. Officials had notified them during the hearing that their signs exceeded the size limits set by federal regulations. The demonstrators pointed out that they had all the necessary permits and that no one had questioned their signs for the past two days. But court officials were unmoved. Either the signs came down by 11:30 a.m., they said, or their owners would be arrested. As the deadline approached, dozens of demonstrators gathered behind a single sign almost 20 feet long. The sign had been facing the traffic in the street, but now, in an act of defiantly free speech, they turned it to face the court. Police in black jackets and riot helmets gathered on the steps above as organizers gave instructions to those willing to face arrest: Get rid of your umbrellas; don't shout at the arresting officers; walk, don't be dragged; make sure you're carrying a photo ID. At 11:30, a leader with a microphone led in prayer. Police waited respectfully at the top of the stairs until an "amen" was said. Then a small blond officer approached the man at one end of the sign. "Are you the owner of this sign?" she asked quietly and distinctly. "Are you aware you're in violation of Regulation 6?" When the answer to both questions was yes, she informed him: "You're now under arrest." Again and again the routine was repeated-22 arrests in all. Officers placed demonstrators in plastic handcuffs, led them backwards up the stairs, then across the broad plaza in the steady rain. Journalists and photographers were not allowed to follow. As their colleagues were led away, still facing them, those awaiting arrest cheered them on, sang "God Bless America," or moved their lips in silent prayer. Jeremy Fowler, a 21-year-old from San Bernardino, Calif., was the 14th arrest of the morning. With only eight officers arresting demonstrators two-by-two, he waited without an umbrella in the wind and rain when his turn came and no police were available. Cold, with his nylon jacket and baggy jeans soaked through, he shook visibly. Next in line was Edith Manchester of Santa Cruz, Calif. "Eighty years old," she replied proudly when asked her age. She cocked her head slightly and leaned in to hear the officer say, "You're now under arrest," then nodded and pushed up her sleeves to make room for the cuffs. As she stepped out from under an umbrella, her thin, white hair was quickly matted to her scalp by the rain. Alone among the protesters, police allowed her to walk front-ways up the marble steps. The crowd applauded. "Thank you, sister," called one protester. "Thank you, Jesus," Miss Manchester called back. Another arrest was Jeff Bryak, a 19-year-old who flew in from Chicago for his first major pro-life demonstration. He figured he spent $400 to get to Washington, stood in the rain for hours to hear a few minutes of argument, then got himself arrested. Was it worth it? "If the Supreme Court rules that states can make [abortion] illegal, that will definitely make it worth it," he said. "I'll be able to say I was here for that first step to ending all abortion." But even if Mr. Scalia manages to round up four other justices to uphold the ban on partial-birth abortion, the Nebraska case is still only a baby step, at best. Unlike Planned Parenthood vs. Casey in 1992, neither side tried to make this a sweeping referendum on Roe vs. Wade. The legal issues at stake were narrow and the practical implications limited. Even Mr. Stenberg admitted, under intense questioning, that if the law were ruled constitutional, a woman in Nebraska would always have other forms of abortion available to her. A symbolic victory would be more than welcome to pro-lifers wearied by a quarter-century of constant battles. But long-term victory won't come in this case, or even this court. With as many as three justices likely to retire within five years, the next president's judicial nominations will have an extraordinary impact on the abortion issue for years to come. New justices will grapple with the issues while new protesters clash on sidewalks across the land. God save the United States and this honorable court.

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