Court to hear abortion, Scout cases

Graves says the abortion ruling will clarify

Kansas law.

By DAVID G. SAVAGE

Los Angeles Times

WASHINGTON --- The Supreme Court took up two of the fiercest fights in the nation's culture wars Friday, saying it will decide whether so-called "partial-birth abortions" may be outlawed and whether the Boy Scouts of America may exclude openly gay men.

Both cases will be argued in April and decided by late June.

In the abortion case, the justices will consider a controversial, but rarely used procedure that opponents say is "hideous" and "barbaric." For their part, abortion-rights advocates see a threat to women's rights because laws prohibiting the procedure could be read to ban nearly all abortions.

The justices haven't heard a major abortion dispute since 1992, when they reaffirmed the right to abortion on a 5-4 vote.

At that time, Justice Sandra Day O'Connor said states couldn't put an "undue burden" on a woman's right to terminate a pregnancy before the time a fetus can live on its own. This occurs after about six months of pregnancy.

Since then, abortion foes have focused their efforts on a controversial but rare procedure that is used in later-term abortions.

Some doctors say this procedure is necessary in special cases. Halfway through a normal pregnancy, some prospective mothers learn that their babies have severe malformations. But at this stage, the fetus is too large to be removed easily and without putting the mother at risk.

According to court testimony, some doctors pull the baby's feet from the womb first and then pierce the skull to shrink it. A few seconds later, the entire fetus is removed.

The National Right to Life Committee labeled this a "partial- birth abortion" because in most instances, the baby is still alive when the skull is pierced. (Some doctors say they use an injection to kill the fetus before beginning the surgery. Others say that these injections are risky to the mother.)

Since 1995, more than half the states have passed laws forbidding "partial-birth abortions." Judges are divided on whether the laws are constitutional.

Nebraska's statute makes it a crime to "partially deliver a living unborn child before killing it." A judge in Lincoln, Neb., concluded this ban might cover all abortions since, even during a first-term abortion, a tiny fetus's heart still may be beating when it is removed.

For this reason, the judge and the U.S. Court of Appeals in St. Louis said, the state law puts an "undue burden on a woman's right to choose an abortion."

Disagreeing, Nebraska's attorney general said his state's law targets "a particularly hideous procedure," which should be banned.

Because the lower courts are divided, it came as no surprise when the justices announced that they would hear the case (Stenberg vs. Carhart, 99-830).

Abortion-rights attorneys say that the attack on "partial-birth abortions" has been a publicity stunt intended to undercut support for all abortions.

Gov. Bill Graves said he hoped the decision in the Nebraska case also will clarify whether a similar law enacted in Kansas in 1998 is constitutional.

"There is nothing better than a Supreme Court decision to clarify what states can and cannot do," Graves said Friday.

The Kansas law, which restricts late-term abortions and prohibits the partial-birth procedure, has been ineffective in the eyes of anti- abortion lawmakers because it allows exceptions when a woman's physical or mental health is threatened by the continuation of a pregnancy.

Because of the mental health exception, doctors in Kansas have continued to perform partial-birth abortions. During the last six months of 1998, after the ban was in place, all 58 abortions labeled by the Kansas Department of Health and Environment as partial-birth were performed to preserve a woman's mental health.

In the Boy Scout case, the justices said they would review a New Jersey court's order that requires the Scouts to admit gays on an equal basis.

At issue is whether the Scouts are a private group entitled to set its own membership rules or a public organization that may not discriminate.

In California and elsewhere, the Boy Scouts have been deemed a private, nonbusiness group. Therefore, they need not comply with the state's main anti-discrimination law. It covers private workplaces and businesses that are open to the public, such as hotels and restaurants.

But in August, the New Jersey Supreme Court became the first to extend an anti-bias law to the Boy Scouts. James Dale, an Eagle Scout and a 20-year-old scout master, had been kicked out after he revealed that he is gay in a Newark newspaper article.

Siding with Dale, the state judges ruled that the Boy Scouts are essentially a public enterprise, as the group is open to all boys. And, as a public organization, the Scouts may not discriminate based on sexual orientation, the state court concluded.

In an angry tone, the Boy Scouts of America asked the Supreme Court to intervene and to set a national rule that shields the Scouts from such orders (Boy Scouts of America vs. Dale, 99-699).

Attorneys for the Scouts said the group's code of conduct demands "morally straight" behavior. They argue that required inclusion of gays in the organization violates their First Amendment rights.

(Capital-Journal staff writer Jim McLean contributed to this report.)

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