WASHINGTON — A Bush administration lawyer urged the Supreme Court on Wednesday to uphold the nation's first criminal ban on an abortion method, saying so-called partial-birth abortions are "too close to infanticide" and not a medical necessity.
Safe alternatives are always available, U.S. Solicitor General Paul D. Clement said in defending a law passed by Congress in 2003.
But two abortion-rights advocates argued that the ban, if put into effect, would unwisely limit the options of doctors who perform abortions in the second trimester and would expose some pregnant women to more dangerous surgery.
These doctors believe that the procedure medically known as dilation and extraction, or D&X -- in which the fetus is removed intact -- "reduces the risk of serious complications," including bleeding and infection in the uterus, said Priscilla Smith, a lawyer for the Center for Reproductive Rights in New York.
"What Congress has done here is take away from women the option of what may be the safest procedure for her," said Eve Gartner, a lawyer for the Planned Parenthood Federation of America.
The case could prove a turning point for the Supreme Court on abortion. With the arrival of President Bush's two conservative appointees, there appears to be a five-vote majority, including Justice Anthony M. Kennedy, to uphold stricter regulation of abortion.
Six years ago when the court struck down a Nebraska ban on the practice, Kennedy wrote an impassioned dissent, describing D&X as "abhorrent."
Abortion-rights advocates hope he will switch sides. But Wednesday, Kennedy suggested that the disputed procedure might be "purely elective and not medically necessary."
New Justice Samuel A. Alito Jr. said nothing. But he and Chief Justice John G. Roberts Jr. have been counted as likely to uphold the federal Partial Birth Abortion Ban Act.
The measure, a proud achievement of Bush and the Republican-controlled Congress, coincidentally came before the court the day after its prime sponsor Sen. Rick Santorum (R-Pa.) went down to defeat and the GOP lost control of Congress.
Most of the two-hour argument Wednesday was about the scope of the law, which would ban a procedure used only after the 16th week of pregnancy. Critics call it "partial-birth" abortion because doctors extract the living fetus partway from the uterus, then collapse its skull before pulling the fetus the rest of the way out.
