Abortion Test Case Trial Ends

The first of three trials testing the constitutionality of a federal ban on so-called partial-birth abortions ended Friday with lawyers for abortion providers insisting that the law will deny women medically necessary options and the government condemning the procedures as cruel and ghastly.

U.S. District Judge Phyllis Hamilton took the case under submission after three weeks of testimony. She will decide the constitutional question in a ruling that could take months and may eventually reach the U.S. Supreme Court.

The trial here was launched simultaneously on March 29 with trials in New York and Nebraska in a concerted campaign to overturn the first abortion prohibition in more than 30 years since the U.S. Supreme Court upheld a woman’s right to terminate her pregnancy. The other two trials have not yet concluded.

Some observers view the issue in political terms. They say the law is part of a multi-pronged effort by the Bush administration to outlaw abortion by chipping away at the edges of abortion rights.

Whether either side can use the issue in this election year, however, remains to be seen.

Lawyers who oppose the new federal law focused their arguments Friday on the health needs of women and the reluctance of many doctors to provide second-trimester abortions if they could face two years in prison for performing certain procedures.

Eve C. Gartner, a staff attorney for Planned Parenthood Federation of America, said the ban signed by President Bush would effectively prohibit the most common kind of abortion done during the second trimester, which generally involves the use of forceps to remove the nonviable fetus.

“The only way to avoid violation is not to do any procedure that could possibly violate the law,” Gartner said. Physicians “fear being second-guessed by others in the judgment of whether a particular procedure was banned by the act.”

A partial-birth abortion or what doctors commonly call an “intact dilation and extraction” involves partially removing a nonviable fetus and puncturing or crushing its head.

The more commonly used procedure during the second trimester also can result in the removal of part of an intact, living fetus, making physicians fearful to undertake it at all should the federal ban be enforced, Gartner said.

Deputy San Francisco City Atty. Aleeta Van Runkle said the law will prevent doctors from performing the safest procedure for their patients.

“The law strikes at the very heart of the physician-patient relationship,” she said.

Ninety percent of abortions are performed during the first trimester, which the federal law does not affect. Rarer second-trimester abortions of nonviable fetuses are performed for various reasons, including fetal anomalies and concerns about the woman’s health if the pregnancy continues. Some women prefer to have the fetus removed intact so it can be examined by pathologists.

In addition to the procedures that Planned Parenthood said are threatened by the ban, women can abort in the second trimester by being induced, or fetal demise can be caused by a chemical injection while the fetus is still within the woman. But 95% of the women who obtain second-trimester abortions elect to have the kinds of procedures the new law would end, Planned Parenthood said.

Government lawyers used their time Friday to describe the banned procedure in graphic detail and to remind the judge that one of their experts believes a fetus can feel pain after 22 weeks. Experts for Planned Parenthood disputed that contention.

Mark Quinlivan, a lawyer for the U.S. Department of Justice, said the type of abortion outlawed by Congress “causes a fetus, sometimes inches away from birth, an excruciating amount of pain.”

W. Scott Simpson, another Justice Department lawyer, elaborated on the subject by noting “children hate getting shots.” What happens to the fetus during the banned procedure “would hurt more than getting a shot,” Simpson said.

“This is a baby, and Congress can prohibit partially delivering that baby only to kill it in the last minutes,” the Bush administration lawyer said.

Simpson contended that the act would prohibit a relatively small number of second-trimester abortions and insisted that other, safe alternatives would remain available.

The new ban makes an exception for instances in which a woman’s life is at stake but not when her health is threatened. The law says the banned procedure is never needed to protect a woman’s health.

Witnesses called by the government during the trial contended the procedure blurred the line between killing a fetus and killing a baby; physicians who perform such abortions testified that they are sometimes less risky for women than other methods of terminating a pregnancy.

Abortion rights activists have obtained court injunctions to prevent the federal law from being enforced until its constitutionality is resolved. The U.S. Supreme Court struck down a Nebraska law similar to the federal ban in 2000, ruling that it imposed an undue burden on women’s rights.