Nebraska ruling shifted anti-abortion focus

By Charles Bierbauer
CNN Washington Bureau

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Bellevue, Nebraska (CNN) -- Dr. LeRoy Carhart and the Abortion and Contraception Clinic of Nebraska are very much in business nearly a year after the U.S. Supreme Court blocked the Nebraska legislature's effort to ban certain abortion procedures. I caught the doctor on a slow day.

"We're going to see about seven patients. Yesterday we saw approximately 20," Dr. Carhart calculated. "About 1,400 patients a year." Carhart has continued his family medicine practice and seen an increase in patients who "want to go to a physician that they know is pro-choice."

Carhart is the 59-year-old former Air Force surgeon who challenged Nebraska's attempt to ban what opponents call "partial birth abortion." Carhart says only one abortion provider in the country actually performs the procedure which involves partial delivery and depression of the fetal skull prior to removal. It's called dilation and extraction -- D & X.

Carhart challenged that the Nebraska ban could be applied to the more common dilation and evacuation -- D & E.

The Supreme Court agreed that the Nebraska ban was too vague and too broad.

• Justice Stephen Breyer: "It thereby places an 'undue burden' upon a woman's right to terminate her pregnancy before viability."

• Justice Sandra Day O'Connor: "...it lacks an exception for those instances when the banned procedure is necessary to preserve the health of the mother."

Breyer drew on the court's previous ruling in Planned Parenthood v. Casey to keep abortion rights intact. O'Connor drew a blueprint for what might yet become a constitutionally acceptable narrowing.

Still, the court's 5-4 ruling last June appears to have stymied efforts by abortion opponents to block the relatively little used but politically sensitive partial-birth procedure.

"The problem legal drafters will have now is trying to define health of the mother in an acceptable way to give people notice of what's in bounds and what's out of bounds," says Congressman Lindsey Graham.

Graham, the South Carolina Republican, is one of the prime movers for curbing abortion through federal legislation. But he doubts Congress will even bother to attempt to pass a ban this year because of last year's court ruling.

Ironically, President Clinton twice vetoed legislation that would have halted the procedure. President Bush favors it, but may not get the chance.

"If we could ever get something to withstand constitutional scrutiny, it would be signed," Congressman Graham says.

Instead, abortion opponents have shifted their legislative focus.

*The House last month passed Graham's bill making it a crime to cause injury or death to a fetus. But Senate action is uncertain. Critics say it's really an abortion bill because the legislation is aimed at giving legal status to the fetus.

*The House this week narrowly voted to ban aid to international organizations that perform abortions or give abortion counseling. The U.S. has not provided such funding since 1973.

*Nebraska's legislature sought to limit fetal tissue research, but the debate foundered.

Which brings us back to Dr. Carhart whose days in court did not end with last year's Supreme Court victory.

Following the court ruling, Dr. Carhart was dismissed from a volunteer faculty position at the University of Nebraska Medical Center in Omaha. He's suing for reinstatement.

"What I did was to provide tissue from the abortions that we do here to the university for use in their on-going research for AIDS, dementia, Parkinson's disease, Alzheimer's disease," Dr. Carhart explains.

Carhart's court petition says "his reputation was harmed by his dismissal, which in turn has caused him to suffer emotional harm."

He is also fighting his landlord's effort to evict the clinic from the building it's occupied since 1994.

Yet past the two anti-abortion protestors at the edge of the parking lot, behind the huge sign advertising his clinic and beyond the double security doors, Dr. Carhart hardly seems distressed.

"My life has turned more into public support of abortion," Carhart says of the events that have followed his Supreme Court victory.

His name, like those of Roe and Casey, is forever linked with abortion's judicial history.

He is the only physician in a six state area -- Nebraska, Iowa, North Dakota, South Dakota, Wyoming and northwest Missouri -- who performs abortions beyond 16 weeks of pregnancy. He's willing to do abortions up to 24 weeks so long as the pregnancy is not viable.

"I've done enough abortions that I don't feel I have to do any more to satisfy my ego," Carhart says. He has trained four other physicians who now provide abortions in other states.

He has become a figurehead, a spokesman raising funds and drumming up support for the pro-choice forces.

"The biggest change of my life is travelling all over the country," he says. "I really love it. It's more fun than doing abortions."

Charles Bierbauer, CNN's senior Washington correspondent, covers the U.S. Supreme Court and public policy issues. Send comments to Charles Bierbauer by writing to charles.lawcenter@cnn.com.