onald Stenberg, the attorney general of Nebraska, will be defending the state’s partial-birth abortion ban before the Supreme Court on April 25. Stenberg is also a Republican candidate vying for retiring senator Bob Kerrey’s U.S. Senate seat. Nebraska’s primary will be held in May.

National Review: Last week the Supreme Court denied a Clinton administration request to join in the oral arguments in Stenberg v. Cahart. Did it come as a surprise to you that they tried? Was it a surprise that the request was denied?

Donald Stenberg: Well, it certainly didn’t surprise me that the Clinton administration wanted to be part of the oral argument of this case. The Clinton administration is very pro-abortion and always has been. It was a surprise that the Supreme Court did not allow the solicitor general to argue. The usual practice for the Court is to grant the solicitor general’s office the opportunity to argue in almost every case they ask to be heard in. It really was a surprise that the Clinton administration’s request was rejected by the court.

NR: Any idea why it was?

Stenberg: No, I really don’t know why. Clearly, the Clinton administration was just “me-tooing” the arguments of Dr. Carhart and the other pro-abortion organizations that filed the court briefs in this case. I don’t know that they had a lot to add to the argument.

NR: On the day of the vote in the House of representatives last week on partial-birth abortion, the Washington Post editorialized the vote was “reckless . . . ” and said that they should wait to find out what happens in the Nebraska case? Should they?

Stenberg: I have not reviewed the bill that they just voted on, but Nebraka’s law, which was passed in 1997, was based on and patterned after the law that was before the Congress at that time. I certainly think that a decision in the Nebraska case on the merits will also tell us whether the federal legislation is constitutional or not.

NR: There’s been a whole lot of discussion about what exactly ban covers. What is that about?

Stenberg: The intention of the legislature was clearly to ban only partial-birth abortions, which are sometimes referred to as D&X abortions. Illinois and Wisconsin passed statutes very similar to Nebraska’s and the 2nd Circuit Court of Appeals found that those statutes only did ban D&X abortions. So, all we’re asking the U.S. Supreme Court to do on that issue is to interpret Nebraska’s law in the same manner that the 2nd Circuit interpreted the Illinois and Wisconsin statutes.

NR: Will the decision in this case a definitive ruling on partial-birth abortion? Will it a defining moment for the legal status of abortion in America?

Stenberg: I think it’s a very important case because it will at least tell us whether the states have the authority to ban little-used and barbaric abortion practices. If the court would find the Nebraska statute bans only D&X abortions and that it is unconstitutional, then what that would be saying is that the states have no ability to limit the amount of cruelty or grotesqueness that is practiced by any doctor who performs any abortion. But I think, on the other hand, that the battle over the right to life will certainly continue after this case. It’s clear that the central focus of that battle will be on the nomination and confirmation of future Supreme Court Justices. If every Supreme Court Justice held the same views on this issue as the Chief Justice and Justice Thomas and Justice Scalia, there’s no question that a ban on partial-birth abortion would be upheld and, in fact, states would have considerably more leeway in restricting and prohibiting abortions. The constitutional philosophy of Supreme Court Judges is absolutely vital to the future direction of this issue in the United States.

NR: A lot of this is played out in the press, but, of course, it ultimately comes down to the courtroom. Based on previous decisions in this area by the court what are your concerns and hopes?

Stenberg: If the court were just basically to apply existing legal precedent, it should result in a favorable ruling in our case. The basic rules of statutory construction are that you construe a statute in a manner to uphold its constitutionality or to avoid constitutional questions, in this case, to ban only D&X abortions. The current test is whether an abortion restriction creates what the Court has called “an undue burden” on a woman’s right to an abortion. When all that you’re banning is a little-used practice that is particularly barbaric and where safe alternatives for abortion exist, then that should not be found to be an undue burden. So, the Court really doesn’t have to break any new legal ground. It just has to apply its existing precedents in a fair and reasonable manner in order to uphold Nenraska’s ban on partial-birth abortion.

NR: Gloria Feldt of Planned Parenthood has been going around saying that the high court will be dismantling the very foundations of the “right to choose” if the Court rules in favor of the ban. Is that disingenuous? In addition, the abortion doctor who is challenging the ban, Leroy Carhart, has been saying that ultimately we’re going to lose on bans like this and abortion is going to be illegal. Is that playing fair?

Stenberg: Clearly, the Court is not going to take up the issue of overruling Roe v. Wade in this case. One of the questions that we’ve presented in our petition for cert to the Supreme Court was that issue. They did not grant cert on that issue. So that will not be a question that is before the Court in this case on April 25th.

NR: With this going on, how are you finding time to run for the Senate?

Stenberg: I’m setting aside almost all of my time over the next week to prepare for this case. I just think it’s important that I argue this case and to put the job that I have first, ahead of campaign activities. I think Nebraska voters will respect and appreciate that decision.

NR: And after the argument?

Stenberg: Well, after the argument there’s two weeks left between the argument and the primary election and we’ll be back campaigning very hard in those last two weeks.