Court should not waver in protecting health of women

THE ISSUE The U.S. Supreme Court is hearing arguments today in a challenge of a federal ban on what critics call "partial-birth" abortion.

ABORTION procedures aimed at preserving a woman's health are under attack again in the U.S. Supreme Court, a different court from the one that provided that protection six years ago. A major effort will be needed to protect abortion rights in general if the new court delivers a setback.

The high court was to hear arguments today in a challenge of the federal Partial-Birth Abortion Ban Act. The law was enacted in 2003 after the Supreme Court declared a similar restriction in a Nebraska state law to be unconstitutional.

The high court denounced Nebraska's abortion ban because it failed to include an exception to protect a pregnant woman's health. The federal law simply states incorrectly that the procedure is never necessary to protect her health.

"Partial-birth abortion" is a repugnant term for a procedure known in the medical profession as dilation and evacuation. Doctors dilate the cervix so they can remove the fetus and cut the umbilical cord. If the cervix is open, the fetus can be removed intact with little risk.

However, it is not always possible to predict whether intact removal is possible, and the federal law disallows the removal of small fetal parts separately, which is necessary if the cervix is small. Doctors try to remove the fetus as intact as possible because repeated insertion of surgical tools can injure the patient.

Abortion opponents say the procedure is rare, but medical organizations and medical school professors say doctors often try to use the method in performing abortions in the second trimester, when about 10 percent of all abortions occur. Sponsors of the law also maintained wrongly in its preamble that the method is so aberrant that "no medical schools" teach it. It is taught at leading medical schools.

Court observers will focus on Justice Samuel A. Alito Jr. and Chief Justice John G. Roberts, newly named to the court by President Bush. Alito succeeded Justice Sandra Day O'Connor, who retired in January and voted with the 5-to-4 majority in the Nebraska case. Abortion-rights advocates might have a better chance of persuading Justice Anthony M. Kennedy to reconsider his dissent.

Kennedy has sided with the majority in other cases where Congress has tried but failed to defy the Supreme Court's authority to interpret the Constitution. This is such a case. The court ruled three years ago that a state "may not endanger a woman's health when it regulates the methods of abortion." The federal law's assertion that protection from such endangerment is unnecessary amounts to such defiance.