onald Stenberg argued the case Stenberg v. Carhart before the Supreme Court in April.

Lopez: How big a setback was the Court's ruling in Stenberg v. Carhart?

Stenberg: I think the partial-birth abortion issue has been helpful to the pro-life cause because it has helped focus the public's attention on this particular procedure, which is clearly one that is barbaric and much of the public objects to. In fact, only one member of the Nebraska legislature voted against Nebraska's ban on partial-birth abortion. To me, the decision simply highlights the importance of this year's presidential election and the need to elect a president who will appoint justices like Justice Scalia, Justice Thomas, and Justice Rehnquist who take a strict-constructionist view of the Constitution and aren't going to legislate their own social views in the name of the Constitution, as Justice Ginsburg, and Justice Breyer, and others are doing.

Lopez: Is there anything in the opinion that gives you hope that Nebraska's ban on partial-birth abortion could be redrafted to pass muster with this Court?

Stenberg: Yes, a law could be written that on its face prohibited partial-birth abortion that would be presumably upheld by the Court. But as Justice Kennedy points out in his dissent, the need for a health exception based on the appropriate medical judgment of the abortionist means that there can be no effective ban. As Justice Kennedy said, a ban that relies on the medical judgment of Dr. Carhart is no ban at all.

Lopez: Given that, what is to be done about partial-birth abortion, besides Court retirements and appointments by a new administration?

Stenberg: I think that legislatures and Congress can certainly pass legislation to prohibit partial-birth abortion with a health exception as a symbolic gesture, showing that the legislative body finds it to be an immoral and barbaric practice that should be prohibited. But at the same time, the health exception means that any abortionist who wants to do one of these is simply going to do one by proclaiming that it is in the woman's best health interest. And so, if we want to be able to pass an effective ban on partial-birth abortions we need to change the make-up of the United States Supreme Court.

Lopez: Were you surprised by Justice Kennedy's dissent?

Stenberg: I was not. Justice Kennedy and Justice O'Connor, of course, were the two swing votes. Based on oral argument, I though there was a good chance that Justice Kennedy would rule in Nebraska's favor. Justice Kennedy was particularly interested in the fact that the American Medical Association has said that there always safe alternative forms of abortion available to women, that partial-birth abortion is never the only alternative available. And he also seems interested in the fact that the AMA has worked with congressional leadership to adopt amendments to clarify that this law bans only the D&X or partial-birth abortion procedure.

Lopez: Given the opinions, have you had any second thoughts regarding your legal strategy — is there anything that you could have done differently before the Court?

Stenberg: No, there's nothing. I think we were right on the money. The four dissenters repeatedly used the same arguments that we used in our brief and that I had used in oral argument. There's nothing that we could have said or done that would have changed Justice O'Connor's view in this case.

Lopez: Do you expect something symbolic coming out of the legislature in Nebraska? What is the future for partial-birth abortion in Nebraska?

Stenberg: Given that the Nebraska legislature passed our ban on partial-birth abortion three years ago with only one dissenting vote, I think the prospects that they will enact a new ban on partial-birth abortion are very good.