The day after what would have been the nation's most restrictive abortion ban was defeated by voters in South Dakota the U.S. Supreme Court heard arguments in two cases involving challenges to the 2003 federal ban on so-called partial-birth abortion. With four conservative justices certainly against and four liberal ones for the decision seems to ride on Justice Anthony Kennedy who sits in the center of the court on abortion issues.
Today the court heard two hours of arguments full of exacting, graphic descriptions of abortion procedures and according to reports, throughout the session Kennedy appeared troubled by the potential implications of the law. Would it leave few legal alternatives in cases in which a pregnancy threatens a woman's life? How frequently is a late-term procedure medically necessary? Would doctors be held criminally liable for performing emergency late-term abortions when they had no other choice? Kennedy pressed both sides in the case on those questions, and hinted that he thinks the federal law may be too restrictive, saying:
If a woman in need of a lifesaving, late-term abortion were to rely on a court's quick action, she might be in serious trouble. I don't know if you could just go to a district judge and say, `I need an order.' The judge would take - would have to take - many hours to understand that.
The government says the law survives constitutional scrutiny because of Congress' fact-finding and its interest in preventing "infanticide," a word that came up several times during the hearings.