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Bush Lawyers Ask Justices to Revive Limit on Abortion

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Times Staff Writer

Bush administration lawyers asked the Supreme Court on Monday to reinstate the first federal law banning a late-term abortion procedure, arguing that it should be outlawed because it is gruesome and is “never medically indicated” as a safer surgical procedure.

The government’s appeal asks the high court to overturn the decision of a U.S. appeals court in St. Louis, which struck down the law as unconstitutional.

It came on the same day the Senate took up the nomination of Judge John G. Roberts Jr. for chief justice of the United States. If, as expected, Roberts is confirmed this week, his court could put new limits on abortion during its first term, which begins Monday.

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The dispute over this type of procedure -- known medically as intact dilation and extraction and called “partial-birth abortion” by critics -- amounts to a rerun of a case heard five years ago by the high court. However, the outcome is in doubt this time because the makeup of the court is changing.

In 2000, the justices ruled 5 to 4 to strike down a Nebraska law that made it a crime for a doctor to remove much of a fetus intact during a midterm abortion. This procedure is used by some doctors who perform abortions in the fifth or sixth month of a pregnancy.

In the past, the Supreme Court had said that women could choose to end their pregnancies until the time a fetus could live on its own, which occurs after the sixth month. These later-term abortions are more complicated and only a few doctors perform them.

In Nebraska, for example, Dr. Leroy Carhart was the only physician who performed midterm abortions, and in 1997 he filed a legal challenge to a state law banning intact dilation and extraction procedures, contending the law was unconstitutional. He testified that the intact removals were safer than other methods because there was less chance of bleeding and infection.

Other medical experts backed up his testimony, agreeing that, in some instances, the procedure was a better method of performing abortions.

A federal judge in Nebraska, the U.S. Court of Appeals in St. Louis and ultimately the Supreme Court invalidated the state’s law in 2000. The Supreme Court opinion said that “substantial medical authority supports” the doctor’s claim that banning this procedure “could endanger women’s health.”

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Nonetheless, Congress passed the Partial-Birth Abortion Ban Act in 2003 and made it a federal crime to perform such procedures. Lawmakers pointedly disagreed with the doctors who supported the use of the procedure. The legislators concluded that “there is no credible medical evidence that partial-birth abortions are safe or safer than other abortion procedures” and that they are “never medically indicated to preserve the health of the mother.”

When Carhart sued again, this time challenging the new federal law, he won this year in both the U.S. District Court in Omaha and the U.S. 8th Circuit Court of Appeals in St. Louis. Those judges blocked the federal law from taking effect, and said again that the medical testimony indicated the procedure was sometimes needed to ensure a woman’s health.

In their appeal to the Supreme Court, the Bush administration lawyers said the lower courts should have deferred to the lawmakers in Washington, not the medical experts who testified in the case.

“Congress’ findings concerning the medical necessity of partial-birth abortion were entitled to substantial deference,” U.S. Solicitor General Paul D. Clement told the court in Gonzales vs. Carhart.

The eight associate justices met behind closed doors Monday to go over more than 1,700 appeals that have been awaiting action since June. They are expected to announce as early as this morning that several will be heard by the full court in the months ahead.

However, it will be several months before the justices decide whether to hear the abortion case. By then, President Bush’s replacement for Justice Sandra Day O’Connor is likely to be on the court and in position to decide the case. O’Connor announced in July that she planned to retire.

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Five years ago, O’Connor cast the decisive vote to strike down the Nebraska law, saying the government may not regulate abortion in a way that endangers the health of women. Though she said she planned to participate in the court’s work as the term begins, she will step down when her replacement is confirmed.

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