PRO-LIFE NEBRASKA


A Publication of Nebraska Right to Life  Summer 2000

Impressions of Carhart v. Stenberg:

By Julie Schmit-Albin Executive Director

It seemed only fitting that the two times I was at the U.S. Supreme Court in April and June were both dreary, rainy days. Of course the days prior to and following both events were sunny and clear. On April 25th as I prepared to listen to the oral argument in Carhart v. Stenberg. another bit of irony struck. In its usual proceedings before the Court, the Clerk of the Court announces the justices and says: "Oyez, Oyez.....God Protect This Country And This Honorable Court," Greg Schleppenbach and I craned our necks to see where other references to God might be found within the courtroom. We could not locate the Ten Commandments which we had heard were inscribed therein.


Greg Schleppenbach, Bishop's Pastoral Plan for Pro-Life Activities; Julie Schmit-Albin, Nebraska Right to Life and Bob Blank, Metro Right to Life

Outside the U.S. Supreme Court following the oral arguments in Carhart v. Stenberg on April 25th 		The nine justices seemed to materialize through the thick red draperies hung behind the bench. Seated higher than the audience  in the courtroom it's easy to get the impression that they are all omnipotent. It's also easy to get caught up in the moment, with all the security and high drama which preceded our being seated in the courtroom. Every seat was accounted for. But the longer I sat watching the workings of the highest court in the land, the more focused I became. They weren't omnipotent after all, but nine mere mortals whose decision would further dictate the direction our country was headed, What seven members of a nine member court wrought in 1973 struck home more closely for me than ever, as I was seated there. And now we were listening to the pro-abortion counsel for partial-birth abortionist Leroy Carhart plead his case, for what is clearly tantamount to infanticide. I was proud of Attorney General Don Stenberg's reasoned defense of our state ban on partial-ban abortion.
Justice Antonin Scalia was particularly eloquent in his comments in April as to the level of coarseness which would pervade our society if we let horrors such as partial-birth abortion continue unabated.

After a precise hour of arguments, the courtroom practically emptied while other cases were taken up. Outside in the rain we hurried down the steps to hear AG Stenberg's and National Right to Life Legal Counsel Jim Bopp's comments to the national media, Greg, Bob Blank and I huddled under one umbrella as the rain got more intense. It was almost impossible to hear what was being said. A free-for-all ensues in such occasions as both pro-life and pro-abortion spokespersons battled for the microphones. The weather hampered this process considerably.

Lt. Governor Dave Maurstad, the sponsor of the law which had brought us all there, got his chance at the mikes after AG Stenberg. Once they emerged from the crowd all of us congratulated and thanked Stenberg before he went off to do other interviews. After most of the pro-abortion groups had issued their sound bites; Bob, Greg and I ventured forth and briefly spoke for Nebraska's pro-life organizations to the press that was still there.

As we turned to leave the press conference area we witnessed the first few of 22 pro-lifers who were being arrested on the steps. An all-night prayer vigil had been held in front of the Supreme Court the night before. Two days prior to that pro-life groups had erected large signs on the steps, some with photos of aborted babies and some with drawings of partial-birth abortion. The groups coordinating the display had obtained all the necessary permits from the District of Columbia. The morning of the argument the Supreme Court issued its own ordinance which said the signs had to come down because their size posed a hazard. 

Once again I was awestruck by the absolute irony of standing on what should be the most hallowed spot for free speech in the nation....the steps of the U.S. Supreme Court....and seeing U.S. citizens being cuffed and made to walk backwards up the steps, all because they refused to dismantle signs which had already been standing for 48 hours.

On June 28th myself and three NRL board members; Chuck Conrad of Hastings, Denise Ashby of Lincoln and Brian Kimminau of North Platte, arrived in D.C. to attend the National Right to Life (NRLC) Convention. As luck would have it we got in at 10:00 a.m., just as the Court was issuing its decision in Carhart v. Stenberg. We arrived at the Court (in the rain again) just as Leroy Carhart and his handlers were delivering their spin to the usual crush of media. Once again we bumped into Lt. Governor Maurstad and got his impression of what had happened. Jim Bopp had already left the Court so we headed to the NRLC office to catch him briefly while he did more interviews. I called back the Nebraska press from the office. Having not had a chance to read the decision or any of the dissents, I answered questions as best I could.

One of the main questions from the Nebraska media was, what will the Nebraska Legislature do now? My first impression was that there were still a number of states with partial-birth abortion bans already in the hopper. If they wanted to attempt to address Justice Sandra Day O'Connor's demands for a health exception, let any of those states try it.

It wasn't until I read Nebraska's newspapers on-line the next day that I learned State Senator Jon Bruning of Omaha was already thinking about introducing another partial-birth abortion ban with a health exception. We have yet to see what Senator Bruning's thoughts are in regard to crafting a health exception that doesn't permit abortion on demand for any reason, as is the case with the health language taken from the Doe v. Bolton companion decision to Roe v. Wade. Nebraska Right to Life will wait to see what direction National Right to Life takes in response to the court decision.

  


Attorney General Don Stenberg responds to questions following the oral argument.

In reading through the dissents to the majority written by Justices Scalia, Kennedy and Thomas, one is encouraged by their ability to cut through the legalese for the layman and get to the heart of the matter.

Justice Scalia: "Today's decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a firestorm of criticism,..as well it should....If only for the sake of its own preservation, the Court should return this matter to the people, where the Constitution, by its silence on the subject, left it and let them decide, State by State, whether this practice should be allowed. Casey must be overruled."

Justice Kennedy: "Ignoring substantial medical and ethical opinion, the Court substitutes its own judgment for the judgment of Nebraska and some 30 other
States and sweeps the law away. The Court's holding stems from misunderstanding the record, misinterpretation of Casey, outright refusal to respect the law of a State and statutory construction in conflict with settled rules. The decision nullifies a law expressing the will of the people of Nebraska that medical procedures must be governed by moral principles having their foundation in the intrinsic value of human life, including life of the unborn. Through their law the people of Nebraska were forthright in confronting an issue of immense moral consequence. The State chose to forbid a procedure many decent and ivilized
people find so abhorrent as to be among the most serious of crimes against human life, while the State still protected the right of choice as reaffirmed in Casey.
The Court closes its eyes to these profound concerns."

Justice Thomas: " We were reassured in Casey that not all regulations of abortion are unwarranted and that the States may express profound respect for fetal life. Under Casey. the regulation before us today should easily pass constitutional muster. But the Court's abortion jurisprudence is a particularly virulent strain of constitutional exegesis. And so today we are told that 30 States are prohibited from banning one rarely used form of abortion that they believe to border on infanticide. It is clear that the Constitution does not compel this result."


Leroy Carhart's Bellevue abortion facility: Sandy Danek of Lincoln Right to Life visits with John Kelly last winter.

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