Stenberg: High court justices split on ban
, MJrKliMli from page 1
“The issue here today is whether the state can
ban a little-used form of abortion that borders on
I infanticide when safe abortion procedures remain
available to women,” Stenberg said.
“The state’s interest here is tq draw a bright
line between abortion and infanticide.”
Justices Ruth Bader Ginsburg and John Paul
Stevens said such a “bright line” would be a
( departure from precedents , , ,
language, or similar language, to prohibit D&h or
any procedure besides D&X.
Although the law contains an exception for
those cases when the procedure is necessary to
save a woman’s life, it includes no exception to
preserve a woman’s health, O’Connor noted.
Stenberg replied that both the American
Medical Association and the American College of
Obstetricians and Gynecologists have said the
D&X procedure is never necessary to preserve
the life or health of a
io?riH£oev^ The state s interest wor^: f T .
t Wade in 1973 and Planned . Chief Justice
Parenthood of /ipiy? to //) //ivJW fl ’■ WilllSni Rehncjuist
e Southeastern Pennsylvania suggested that an
i vs. Casey in 1992. hricrht lint? JlPfviSPPn exception to preserve a
i In those cases, they ur Igtll llrlC UeiVvtZZs l woman’s health could
> said, the crucial criterion nhnrtinn nn/t be use^ t0 Just^y
was the fetus’viability, not uUUr llUrl UrlU almost any partial-birth
; its location at the time of an jy1fnyitjr>irl0 ” abortion.'
i abortion. The ruling IrlJCinilLlue. But Justice Stephen
allowed states to prohibit or Breyer said some doc
{ regulate abortions after the , DonStenberg tors have testified that
fetus became viable. But in Nebraska attorney general the D&X procedure is
this case, the court is con- .. sometimes the safest
sidering the constitutionality of an abortion pro- procedure available.
f cedure performed before viability.
Stenberg said the Planned Parenthood deci
i sion recognized legitimate state interests that
{ included, but were not limited to, presawing the
r health of the mother and discouraging abortion,
i In this case, Stenberg said, the state has. an
- interest in banninga procedure that most
Americans believe is barbaric.
i Justice Sandra Day O’Connor, who along
with Justice Anthony Kennedy is considered by
a many legal experts to be a critical fcwing vote,
| drew Stenberg into an extended dialogue on the
i law’s scope. m- !
r “Do you take the position,” she asked, “that
the state of Nebraska could also prohibit D&E for
pre-viability?”
Stenberg said the state couldftot do so and has
not attempted it.
' “It is difficult to read the statute and be sure
that is so,” O’Connor replied. “They ’re both grue
some procedures, but one of them may not be dif
a ferent from the other.
“I’m not sure why the statute might not pro
. hibit the D&E procedure.”
The law prohibits ft doctor from “deliberately
- ft«d intentionally delivering into the vagina a liv
- ing unborn child, or a substantial portion thereof,
for the purpose of performing a procedure that the
person performing such procedure knows will kill
«. the unborn child and does kill the unborn child.”
t Stenberg said he was not aware of a single
r state attorney general who has interpreted that
Stenbetg answered that courts should defer to
the will of legislators “when medical opinion is
divided.”
Justice John Paul Stevens asked Stenberg
whether the court, in order to agree with
Stenberg’s position, would have to find that the
D&X procedure is never the most appropriate
abortion method for a woman.
Stenberg $aid the court would not have to
make such a finding, given that “the overall
weight of judgment” of the medical profession is
that the procedure is never medically necessary.
Women still would be able to undergo other pro
cedures, he said. • ..
Stenberg also urged the court to follow prece
dent by favoring a constitutional interpretation of
a state statute when possible.
Heller, Carhart’s lawyer, disputed Stenberg on
two primary fronts.
First, he said, the law prohibits many abortion
procedures besides D&X. Second, even if the law
banned only D&X, it still would be unconstitu
tional because it would violate a woman’s privacy
and possibly force her fo forgo the least risky pro
cedure, he said.
The law would impermissibly ^elevate the
interests of the fetus above the woman’s health,
Heller said.
If this elevation were made permanent, it
would authorize states to prohibit all abortions, he
said.
By “all indications,” Heller said, “The
Nebraska statute is much broader than just a ban
on D&X.”
In many abortion procedures, Heller said, the
doctor dismembers the fetus and pulls parts of its
body into the birth canal before the fetus is clini
cally dead. The law’s prohibition on delivering a
“substantial portion” of the fetus into the womb
during an abortion is vague and could prohibit
such abortions, Heller said.
Stenbeig said the Nebraska Legislature actu
ally added the phrase “a substantial portion” to
make clear the law would not ban D&E, thus
gaining the American Medical Association’s sup
port.
Justice Antonin Scalia said he doubted proce
dures other than D&X would be prohibited.
Dismembering a fetus is different from “inten
tionally delivering” it into the womb for the pur
pose of killing it, he said.
Heller replied that the law’s intent was “shift
ing the abortion procedure into the womb at the
spread in the years to come?” Scalia replied.
Heller said Roe vs. Wade’s nationwide legal
ization of abortion led to medical advances that
have improved safety for women undergoing
abortion. Women’s reproductive freedom and
health should continue to be paramount concerns,
he said.
After the hearing, at a rainy press conference
on the steps of the Supreme Court, Stenberg and
Carhart stood nearly side by side to answer
reporters’ questions.
If the court does not uphold Nebraska’s law,
Stenberg said, then no abortion procedure would
be “too horrific, too barbaric,” for the government
to prohibit.
During a phone conference with Nebraska
media, Stenberg said he was pleased with the
arguments he presented and that the two key jus
tices in this case, O’Connor and Kennedy, seemed
interested in the arguments.
Stenberg said it was difficult to determine
expense or the mother s health. which way the decision would go.
Carhart has said the “The court is clearly divided on this issue,”
D&X procedure is some- ££ jii AT U 1 Stenberg said,
times less risky because it 1 rlC iVCuVClSKCl If the court does rule
reduces the amount of sur- . . against Stenberg, he
gery that must be done StdtlitC IS WHICH said, it would mean the
inside a woman’s cervix. . court was saying 20
This reduces the risk of brOddCV tfldH JliSt Cl other state attorneys
infection or perforation, he _ _.M general - who interpret
has said. bclYl Oil D&X. their states’law on ban
Scalia asked Heller ning partial-birth abor
whether, if the term par- Simon Heller t*ons as limited to the
tial-birth abortion was , for Dr LeR Carhar, D&X procedure - had
interpreted to cover only interpreted their states
D&X, the law would still laws incorrectly.
be unconstitutional.
Heller said it would. He said the state still
would have no compelling interest that would
supersede considerations about the woman’s
health.
Scalia continued to press Heller, saying the
D&X procedure could lead to a “coarsening” of
society.
“Is there no state interest at all,” Scalia asked,
in prohibiting “the destruction of a live human
creature outside the womb?”
Heller said the most important interest is pro
moting the woman’s health.
“Any time the state prohibits a safe procedure,
it is prohibiting a technique that could be safe for
some women,” he said. “Here we are talking
about the right to have an abortion by the safest
possible means.”
A relatively new procedure like D&X may be
controversial at first, but it may prove to be an
important medical advance, Heller said.
“So we can look forward to this being wide
Stenberg al£0 said Carhart testified that 90 to
95 percent of the D&X procedures he performs
fail.
“I don’t think Dr. Carhart’s testimony holds
water considering his previous experience,”
Stenberg said. „ .
At a-press conference later, Carhart said he
had performed “an act of citizenship and patriot
ism,” by challenging the law.and seeking, to
ensure “we don’t make criminals out of doctors
for doing what they feel is safest for their
patients.”
The Nebraska law originally was found
unconstitutional by a district court and by the U.S.
Court of Appeals for the 8th Circuit. The U.S.
Court of Appeals for the 7th Circuit handed down
a conflicting ruling, upholding similar laws in
Illinois and Wisconsin.
The Supreme Court is expected to resolve
those conflicting rulings.
Staff writer Michelle Starr contributed to
this report.
' School ot Music director
named as interim dean
’ r. _ ... . . . \ 1 .
By Kimberly Sweet interim dean position,” he said. “I
, _J aL‘ i. 11 i i
Staff writer
The director of UNL’s School of
r Music will take on the position of
' interim dean of the College of Fine
1 and Performing Arts.
Lawrence Mallet will begin
duties as interim dean of the college
c on July 1, provided the Board of
1 Regents approves his appointment,
f said Richard Edwards, senior vice
chancellor for academic affairs at the
' University of Nebraska-Lincoln.
Mallet will hold the position until
a permanent replacement is found.
He takes over for Richard Durst, who
resigned last February to accept the
position as the dean of the College of
Arts and Architecture and executive
director of University Arts Services
at Pennsylvania State University.
Mallet said he wanted to help the
college continue on its successful
track.
“I look forward to the opportuni
ties and challenges afforded in the
ilium uit tuiitgt ucm uiaut gitai
strides.
“We must continue that growth in
quality and in quantity.”
Mallet said he wasn’t sure how
long his tenure would be but knew a
search committee had been formed
and was advertising for candidates.
The process of reviewing appli
cations will begin May 31, Mallet
said. The search committee hoped to
have a new dean ready to start by
Jan. 1,2001.
Mallet became director of the
school of music in 1993. He is a clar
inetist and a conductor.
He earned his bachelor’s and doc
toral degrees from the University of
Iowa.
He earned his master’s from Ohio
State University.
He earned Iowa’s first-ever doc
torate in conducting and has received
teaching awards. He is also the con
ductor for the Lincoln Community
Concert Band.
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Biotechnology Day
Celebrating a Decade
of Biotechnology
at the
University of Nebraska
The Promise
of Bioengineered Foods:
Diverse Perceptions of Reality
Thursday, April 27. 2000
12:00 - 5:00 p.m.
George W. Beadle Center
Hansen Auditorium, Room £103
Program of Events
12:00 p.m. The Local Food Scene: Snacks of Nebraska Products
12:30 p.m. Welcoming Remarks (Myron Brakke)
12:40 p.m. From Seed to Bread (Brief Introduction by Anne Vidaver)
12:45 p.m. Biotechnology: The Human Need in Plant Agriculture (Steve Baenziger)
1:30 p.m. Genetically Enhanced Plants (Tom Clemente)
2:15 p.m. Break
Taste Nebraska Foods and See the Posters of Biotech Research at UNL
3:15 p.m. Challenges to Biotechnology in Food Products from Animal Agriculture
(Brief Introduction by Ruben Donis)
3:20 p.m. Cutting-edge Technologies to Refine the Old Art of Animal Breeding
(Daniel Pomp)
4:00 p.m. Protecting Animal Health and the Consumer through Vaccines and
Surveillance (Tim Miller)
4:45 p.m. Closing Remarks (Anne Vidaver)
Sponsored by the UNL Center for Biotechnology
