I don't think the Supremes will strike this one down. They are not in the mood to mess with Congress on partial birth abortion.
Courts set to hear challenges to partial-birth abortion ban
Sunday, March 28, 2004
By DAVID KRAVETS
AP Legal Affairs Writer
SAN FRANCISCO -- A historic legal battle over abortion begins Monday in three federal courtrooms coast to coast as judges take up requests to derail the first substantial congressional limitation on abortion since the Supreme Court's landmark Roe v. Wade decision.
The simultaneous litigation centers on legislation President Bush signed last year banning what lawmakers defined as "partial-birth" abortion and what doctors call "intact dilation and extraction" -- or D&X.
The National Abortion Federation, Planned Parenthood Federation of America and a handful of doctors sued in San Francisco, New York and Lincoln, Neb., to overturn the law. They say its language could criminalize more common types of abortion performed after the 13th week of gestation.
Courts and doctors have construed the 1973 Roe v. Wade decision to mean abortions can be legally performed until the "point of viability," when a healthy fetus can survive outside the womb. That milestone is usually reached 24 weeks to 28 weeks after conception.
In the outlawed procedure, generally performed in the second or third trimester, a fetus is partially delivered before being killed, usually by puncturing its skull. The number of the so-called D&X abortions performed annually in the United States is estimated at 2,200 to 5,000, out of 1.3 million total abortions.
The Partial-Birth Abortion Act, which opponents say is a step toward abolishing abortion in the United States, carries a maximum two-year prison term for doctors convicted of performing the procedure. The act has been put on hold pending the outcome of the litigation, which appears likely to reach the Supreme Court.
The three non-jury trials will be filled with graphic, highly technical and conflicting testimony from medical experts on both sides about whether the procedure is medically necessary and a dangerous or safe option for women. They will also feature extensive arguments on whether the law violates constitutional abortion rights.
"This case is going to be made or lost on the experts," said U.S. District Judge Phyllis Hamilton, who is presiding over the San Francisco litigation.
Arguing Congress' case in all three courtrooms, the U.S. Justice Department will also address the physiological question of when a human life can begin to feel pain.
The Congressional act says that the procedure should be outlawed because of "its disturbing similarity to the killing of a newborn infant" and its "disregard for infant human life."
Justice Department attorney Mark Quinlivan wrote in court briefs that the act "is a clear reflection of Congress' well-informed judgment that the public interest is best served by prohibiting partial-birth abortions."
The abortion groups will focus their case on assertions that doctors could have the best intentions of avoiding the banned method, but if problems develop during a surgical procedure, they may find themselves with no good alternative in order to protect a woman's life or health.
The American Medical Association does not encourage use of D&X, but says it should not be banned. The College of Obstetricians and Gynecologists says alternatives to D&X usually exist, but that in some circumstances it may be the best procedure.
Opponents of the ban argue that the language in the federal legislation is vague and could be interpreted as covering more common, less controversial procedures, including "dilation and evacuation." Known as D&E, it is the most common method of second-trimester abortion. An estimated 140,000 D&Es take place in the United States annually.
Doctors will testify on behalf of the Justice Department that the targeted procedure is never medically necessary. To support its argument, the government sought records from abortion providers -- and won only a partial victory. U.S. District Judge Richard Casey, hearing the case in Manhattan, ruled that New York-Presbyterian Hospital must comply. Judge Hamilton of San Francisco was among other judges who ruled that the medical records must remain private.
While Planned Parenthood and other doctors and groups involved in the suit objected to the request and said it was an invasion of privacy, the government demanded the records -- absent patient's names -- in hopes of answering a central claim by the bill's opponents that the procedure is sometimes medically necessary.
The opponents of the act also say the bill is a dangerous intrusion by politicians into medical practice, one that would deter physicians from using procedures that are -- in some cases -- the safest form of abortion.
"We will do everything to keep this law from taking place," said Louise Melling, director of the American Civil Liberties Union's Reproductive Freedom Project.
Former President Clinton twice vetoed similar abortion bills, and the Supreme Court struck down a similar Nebraska law almost four years ago because it lacked an exception for procedures done to preserve a woman's health.
Anticipating this problem, Congress declared that "a partial birth abortion is never necessary to preserve the health of a woman" and is "outside the standard of medical care."
The Justice Department is urging the three judges to defer to Congress' findings.
The New York case is National Abortion Federation v. Ashcroft, 03-8695. The San Francisco case is Planned Parenthood v. Ashcroft, 03-4872. The Nebraska case is Carhart v. Ashcroft, 03-3385. |
