3 Trials Tackle Curb on Abortion

Times Staff Writers

Abortion-rights proponents launched challenges in three courtrooms across the country Monday to the first federal ban on 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 an act signed into law by President Bush last year that outlaws a procedure described by opponents as “partial-birth abortion,” and by most doctors as “intact dilation and extraction.”

The simultaneous trials -- in U.S. District Courts in San Francisco, New York City and Lincoln, Neb. -- raise the profile of what is expected to be an important abortion-rights battle just as election year kicks into high gear.

The plaintiffs, including the Planned Parenthood Federation of America, National Abortion Federation, Center for Reproductive Rights and doctors from Iowa, Nebraska, New York and Virginia, contend that the law is unconstitutional because it contains the same deficiencies as one overturned by the U.S. Supreme Court in 2000.


Like that law, they argued Monday, it provides no exceptions for the health of the mother and is so “hopelessly unclear” that it could outlaw more common procedures performed as early as 13 weeks gestation and thereby place an undue burden on a woman’s right to choose whether to have an abortion.

“Congress could easily have much more precisely defined what it sought to ban,” attorney A. Stephen Hut Jr. said in opening statements before the packed courtroom of U.S. District Judge Richard Conway Casey in New York.

The Justice Department counters that the procedure is never medically necessary, so lawmakers did not need to include an exception for a woman’s health. Assistant U.S. Atty. Sean H. Lane told the federal court in Manhattan that after studying the issue for eight years, Congress concluded that the procedure causes pain to the fetus and “blurs the line between live birth and abortion.”

Bush has touted the law as a key victory that will “end an abhorrent practice and continue to build a culture of life in America.”

Opponents, meanwhile, warn that the law is part of a multi-pronged effort to outlaw abortion altogether by whittling at the edges of abortion rights.

Whether either side can use the issue for political gain in an election year, however, remains an open question.

Both proponents and opponents say voters find the graphic nature of the “partial-birth” procedure disturbing -- and government attorneys in New York cautioned that the trial would be filled with surgical descriptions that “are not for the faint of heart.”

But Republicans are not likely to gain traction with the issue if it is successfully cast as an attack on Roe vs. Wade, said Charles Cook, an independent political analyst in Washington.

“If you took a national poll, most people are aghast at partial-birth abortion. They really hate the idea,” he said. “If you could build a wall around the partial-abortion issue, you’d win. But otherwise you can’t do it. It becomes pro-choice versus pro-life, and for Republicans it’s a loser issue.”

The trials began just days after the U.S. Senate passed the Unborn Victims of Violence Act, which allows the filing of murder charges in federal crimes that result in the death of a fetus. Proponents of the bill, which already has passed the House and is assured of Bush’s signature, applaud it as a crime-fighting measure. But by defining a fetus as a person from the time of conception, abortion proponents fear, it advances the goals of those eager to outlaw the procedure.

Along with the partial-birth abortion ban, abortion-rights advocates say, Bush’s appointments of abortion foes to the federal bench and the passage of other legislation tightening parental consent requirements add up to the biggest threat to a woman’s right to choose an abortion since the U.S. Supreme Court affirmed that right in 1973.

The Partial-Birth Abortion Ban Act “is part of a larger agenda, and that agenda is to outlaw all abortions, at any time during pregnancy, for any reason,” said Gloria Feldt, president of the Planned Parenthood Federation, which filed the lawsuit in federal court in San Francisco.

The law bans procedures in which a physician “deliberately and intentionally delivers a living fetus” to the point where either the head -- or if in a breech position any part of the torso above the navel -- is outside the woman’s body “for the purpose of committing an overt act of killing” the fetus. In such cases, a tool is typically used to collapse the skull and complete the abortion. Estimates of the number of such procedures performed are disputed, but range from 2,200 to 5,000 of the 1.3 million abortions performed annually.

The trials are being closely watched by physician organizations, a number of which oppose the ban as a government intrusion that jeopardizes their ability to make what they consider the best medical choices with their patients. All three cases are expected to turn almost exclusively on the dueling testimony of medical experts.

In federal court in San Francisco, Dr. Maureen Paul, chief medical officer of Planned Parenthood Golden Gate, offered a glimpse of what lies ahead.

Questioned by attorneys representing her employer, she testified that the “partial birth” described by the law is just one outcome of a standard dilation and extraction procedure that is the safest available for women in the second trimester. Paul said she determines the best way to remove a fetus on a case-by-case basis during the procedure, but that the law could be interpreted so broadly as to deter all dilation and extraction procedures.

“My overriding concern is that if I continue to practice second-trimester abortions in the way that I consider safe for women, I could be in prison,” she testified.

Lane, the assistant U.S. attorney arguing the government’s case in Manhattan, said, however, that witnesses called by the government there would testify no proof exists that partial-birth abortion has any safety advantages over more widely used abortion methods. “Plaintiffs claim only that partial-birth abortion’s benefits are intuitive,” Lane said. “You will hear testimony that practicing medicine based on intuition is folly.”

Legal scholars are almost certain the case will reach the high court, but are divided on whether the ban will pass constitutional muster. The U.S. Supreme Court voted 5 to 4 in 2000 to strike down a similar Nebraska law. In Stenberg vs. Carhart, Justice Sandra Day O’Connor wrote that any such law would create an undue burden on a woman’s right to choose an abortion unless it created an exception for the mother’s health and more narrowly defined the banned procedure.

Douglas Kmiec, a professor of constitutional law at Pepperdine University, said he believes “Congress did as good a job as a legislative assembly could be expected to do.”

But USC law professor Erwin Chemerinsky said he believes the law contains the same pitfalls as the Nebraska ban and only has a chance of being upheld if the composition of the high court changes. “I think it’s clearly unconstitutional, and I think the Congress that passed this knew it,” he said.

Douglas Johnson, legislative director of the National Right to Life Committee, which shepherded the ban through Congress, said he remains hopeful. “All you need is one changed mind, one justice who says, ‘This is different,’ ” he said.

Although Johnson said there was no way the current court would overturn Roe vs. Wade, his organization believes it can succeed in limiting abortion on various fronts.

Judges in the courts hearing the cases issued temporary restraining orders blocking enforcement of the law against the plaintiffs -- who make up a bulk of the nation’s abortion providers -- pending an outcome. The Justice Department has agreed not to enforce the ban -- which carries a maximum two-year prison term -- against any physician until the cases conclude.

Atty. Gen. John Ashcroft stirred controversy recently when he issued subpoenas to hospitals and clinics across the country for abortion records, arguing that they are needed to determine whether the procedures were medically necessary. But the subpoenas have been decried by the facilities and abortion-rights proponents as an intimidation tactic and unjustifiable invasion of the privacy of patients.

Although several judges, including U.S. District Judge Richard Conway Casey in New York, have ordered the documents released, others, including U.S. District Judge Phyllis Hamilton in San Francisco, denied the requests. A federal appeals court Monday temporarily stayed Casey’s ruling that New York Presbyterian Hospital turn over the records.


Romney reported from San Francisco and Goldman reported from New York.