Judge Voids Ban on Abortion Procedure

A U.S. District Court judge declared Tuesday that a federal ban on a controversial abortion procedure is unconstitutional, forbidding the enforcement of the law in hundreds of clinics and doctors’ offices across the country.

U.S. District Judge Phyllis J. Hamilton said the ban was flawed in much the same way as a similar ban passed by Nebraska but overturned by the U.S. Supreme Court four years ago. She granted a permanent injunction prohibiting enforcement of the ban against the plaintiffs: Planned Parenthood Federation of America and its affiliates and clinics nationwide as well as physicians to whom they refer patients.

The Partial Birth Abortion Ban Act, signed into law by President Bush last year, was the first federal law to outlaw an abortion procedure since a woman’s right to terminate her pregnancy was established by Roe vs. Wade more than three decades ago. At issue is a procedure that most doctors call “intact dilation and extraction,” which involves partially removing a fetus from the uterus and puncturing or crushing its skull.

Federal judges in New York and Nebraska have heard similar challenges to the law, and rulings are expected soon. Altogether, the plaintiffs in the combined cases represent the majority of abortion providers nationwide.

Government attorneys defending the ban in the three trials argued that the procedure causes fetal pain, blurs the line between abortion and infanticide, and is not medically necessary.

Abortion advocates and major medical associations dispute those charges and said the ban on the procedure was so vague as to limit most medically necessary second-trimester abortions.

In a 117-page decision, Hamilton said the ban imposed an undue burden on a woman’s right to choose, was unconstitutionally vague in its description of the barred medical procedure and failed to include an exception to protect a woman’s health.

President Bush condemned the ruling. Other proponents of the ban said they expected to lose in front of Hamilton, an appointee of President Clinton whom they view as liberal, but they remained optimistic that the U.S. Supreme Court would ultimately decide in their favor.

Opponents, meanwhile, hailed Hamilton’s ruling.

“It’s a major decision,” said Dian Harrison, president and chief executive of Planned Parenthood Golden Gate, which filed suit in the San Francisco case against Atty. Gen. John Ashcroft to block enforcement of the law. “It says to our current administration and our Congress that they can’t make medical decisions for women in this country.”

U.S. Department of Justice officials vowed to appeal, saying the department “will continue to devote all resources necessary to defend this act of Congress.”

All three cases challenging the law focused heavily on the testimony of dueling medical experts, who offered diverging views on whether and when the procedure was necessary, how common and safe it was, and whether fetal pain existed.

Ninety percent of the 1.3 million abortions performed in America each year take place in the first trimester, which the federal law does not affect. Second-trimester abortions are performed for a variety of reasons, including concerns about the woman’s health if the pregnancy continues, and fetal anomalies. Supporters and opponents of the law differ widely on how many second-trimester abortions it would ban.

Supporters of the law say it would affect only 2,200 to 5,000 abortions, but opponents say virtually any second-trimester abortion could be affected.

Government witnesses in San Francisco testified that partially delivering the intact fetus before collapsing the skull and removing it from the uterus was unsafe and unnecessary. But physicians testifying for the plaintiffs said that method could be safer than the more common form of “dilation and extraction,” in which the fetus is dismembered with forceps in multiple passes into the uterus.

“Dilation and extraction” is used in the majority of second-trimester abortions. Although it was not explicitly banned by the act, the physicians who testified said that they often do not know when they begin a procedure whether they will use forceps or partially remove the intact fetus. Those decisions depend on a range of issues that emerge during the procedure, including the degree of cervix dilation, and should be up to the physician, they testified.

Plaintiffs, including Planned Parenthood Golden Gate and the city and county of San Francisco, argued that the vaguely worded ban would effectively prohibit all forms of dilation and extraction, and Hamilton appeared to agree.

“A majority of the physicians who testified noted that because they ‘fear prosecution, conviction and imprisonment,’ the wide net cast by the act could have and has already had the effect of impacting all pre-viability second-trimester abortion services that they provide to their patients,” Hamilton wrote.

Hamilton’s ruling repeatedly cited the 2000 U.S. Supreme Court decision in Carhart vs. Stenberg, which overturned a Nebraska ban on partial birth abortions. In that case, decided on a 5-4 vote, Justice Sandra Day O’Connor specifically described the standard that a restriction on abortion must meet to be constitutional. It had to be specific enough not to place an undue burden on a woman’s right to choose, it had to explicitly describe the banned procedure and it had to contain an exception for the woman’s health, O’Connor wrote.

The current law met none of those tests, Hamilton ruled.

Congress determined that the ban did not need an exception for protecting the health of the mother because the procedure was never medically necessary. In her order, Hamilton found Congress’ fact-finding inadequate. Medical testimony indicated that a health exception would be necessary, she wrote.

The political implications of her ruling were clear from the swift and spirited response from legislators and advocacy groups across the country.

The White House issued a statement saying President Bush “strongly disagrees with today’s California court ruling, which overturns the overwhelming bipartisan majority in Congress that voted to pass this important legislation. The president is committed to building a culture of life in America and the administration will take every necessary step to defend this law in the courts.”

Members of Congress who shepherded the bill to passage expressed anger and disgust at what they interpreted as activist courts in a liberal pocket of the country.

In a telephone conference call with reporters, Sen. Rick Santorum (R-Pa.), a sponsor of the bill banning the procedure, called the case blatantly prejudged and called Hamilton a very liberal judge.

“It seems to be fairly typical that an unelected federal judge in San Francisco tries to stop a law that received such broad bipartisan support in Congress,” said U.S. Sen. George Allen (R-Va).

Abortion rights proponents were equally vocal. Democratic U.S. Sens. Dianne Feinstein and Barbara Boxer applauded Hamilton’s ruling. The Physicians for Reproductive Choice and Health hailed it as a victory of “medical experience and scientific evidence” over “the agenda of one extreme political group.”

And the 30,000-member California Medical Assn., which filed a brief on behalf of the plaintiffs, also praised Hamilton. “This law represented a dangerous precedent in which Congress was inserting itself between the patient and the physicians,” said Jack Lewin, a physician who is the group’s executive vice president and chief executive. “Congress typically doesn’t get in the middle of a clinical procedure to define where and how a doctor proceeds, and this law would do that.”

The campaign for presumptive Democratic presidential nominee John Kerry was quick to issue a statement.

“John Kerry voted to restrict late-term abortions but only where there was a clear exception for life or health of women,” a Kerry spokeswoman said. “However, George Bush pushed through a different piece of legislation that failed to protect the health of women, and that is what the court struck down today.”

Times staff writer Richard Simon contributed to this report.