Abortion on Trial, Again

By Viveca Novak/Bellevue

They said it was horse manure, but Mary Carhart says no. "It was hog manure," she scoffs. "We know horses, and this was not horse manure." But there it was, 12 in. deep, spread over 40 ft. of walkway and steps leading to the Abortion and Contraception Clinic of Nebraska.

Then there was the time they poured glue in the locks, and the times they broke the windows. Most mornings, antiabortion activists are on the scene in Bellevue, waving placards, trying to pass out literature, yelling at the women or couples on their way in. But all that harassment pales next to the day in 1991 when arsonists burned down the farm of Mary and her husband Dr. LeRoy Carhart, 58, who runs the clinic. The fire killed 17 horses, and police never arrested anyone. On that day--the day Nebraska's parental-notification law went into effect and the day his daughter turned 21, the doctor decided abortion "would be my life's work."

Perhaps that explains why Carhart, a retired Air Force lieutenant colonel who was head of surgery at nearby Offutt Air Force Base, has wound up as the plaintiff in the abortion case scheduled to be heard by the Supreme Court this week. It will be the first abortion case Justices have heard in eight years, and will test whether Nebraska and other states have the right to ban what has come to be called as partial-birth abortions. In the 1992 decision known as Planned Parenthood v. Casey, the Justices by a single vote reaffirmed Roe v. Wade, the landmark 1973 decision establishing a woman's right to choose abortion in the first two trimesters of pregnancy. But they said the states had some leeway to regulate the procedure even before the fetus is viable, at around 24 weeks. In the mid '90s, the National Right to Life Committee and its allies zeroed in on an abortion method sometimes used in the late second trimester, labeled it partial birth, and began a highly successful campaign to focus attention on its gruesomeness.

Partial birth isn't a medical term, but it has come to mean the process known as dilation and extraction. In this procedure, a woman's cervix is partly dilated to allow much of the fetus to emerge; a tube is then inserted into its skull and the contents suctioned out, allowing the head to emerge as well. Doctors like Carhart believe it is sometimes the safest way--least harmful to the woman's reproductive system--to remove a fetus of that size. The problem, doctors argue, is that state laws banning this method use language so vague that it effectively makes it illegal to perform most abortions at that stage.

Most courts have agreed, blocking or strictly limiting such laws in 20 of 30 states that have them. The Bush-appointed lower- court judge who threw out Nebraska's law attached a drawing of the female pelvic anatomy to his opinion to show how the ban would encroach on common abortion methods. If the Supreme Court agrees with him, it will almost certainly throw out this law and others like it for flunking the court's test that abortion restrictions can't place an "undue burden" on a woman's right to choose.

Nebraska attorney general Don Stenberg, who is the leading G.O.P. contender for the state's open Senate seat, says Nebraskans think partial-birth abortion is "barbaric." And in most polls on the issue, a majority of Americans say they would favor making it illegal. Congress has marched in step, passing partial-birth bans by overwhelming margins, though not quite enough to override President Clinton's vetoes. But abortion-rights supporters say a better measure of public opinion is the vote in the three states where the issue has been on the ballot and voters have become more informed. In all three--Colorado, Washington and Maine--partial-birth bans have been rejected.

For Carhart, the decision, which is expected in late June, will determine if he stays in business as one of only three abortion providers in the state and the only one who performs abortions after 16 weeks. He says that if the Nebraska law stands, he will shut his practice down rather than risk a $25,000 fine and 20 years in prison. Some women travel more than 25 hours by bus from the Pine Ridge Sioux reservation to get his help, which he advertises with an immense new sign on the side of the building. A smaller, older sign is taped to a window--WHAT PART OF NO TRESPASSING DON'T YOU UNDERSTAND?