Two Courts Reject Ban on Abortion Procedure

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Times Staff Writer

Two federal appeals courts on opposite coasts Tuesday declared Congress’ ban on a controversial late-term abortion procedure unconstitutional -- making it a virtual certainty that newly confirmed Justice Samuel A. Alito will have the opportunity to rule on the issue in the future.

Both the U.S. 9th Circuit Court of Appeals in San Francisco and the 2nd Circuit Court of Appeals in New York said the law was flawed because it failed to provide an exception when the health of a woman was at stake.

The two rulings came on the same day that the Senate, as expected, confirmed Alito, and underscored how quickly Alito’s replacement of retired Justice Sandra Day O’Connor could transform abortion law.


In 2000, O’Connor cast the deciding vote to strike down a Nebraska law barring late-term abortion procedures because of the lack of the women’s health exception.

The ban found unconstitutional Tuesday was passed in 2003. It states that the procedure, which its critics term “partial-birth” abortion, is “never necessary to preserve the health of a woman.” The statute also would subject any physician who “knowingly performs a partial-birth abortion” to civil and criminal penalties, including up to two years in prison.

Advocates on both sides of the debate said they believed there were now five votes on the Supreme Court to uphold a ban on the procedure: Chief Justice John G. Roberts and Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Alito.

“This is a different court now,” said an ebullient Jay Sekulow, lead attorney for the conservative American Center for Law and Justice in Washington, who filed friend-of-the-court briefs supporting the law in both cases decided Tuesday.

“This is the issue that is in the forefront of the abortion debate now,” Sekulow said.

Sen. Dianne Feinstein (D-Calif.), who argued against adoption of the ban in Congress, said the newly configured court should be bound by the landmark ruling that first guaranteed women the constitutional right to an abortion in 1973.

“Roe v. Wade made it clear that a woman’s life and health must be protected. Those pushing for a ban on what they call “partial-birth” abortion failed to succinctly define the medical procedure they seek to ban and they have refused to protect the woman’s health,” Feinstein said.


“It is my hope” that Justice Alito, whose confirmation Feinstein opposed, “follows the path of his predecessor, Justice O’Connor, by supporting” Roe and a ruling interpreting it in 1992, “rather than putting his personal views above the law. Unfortunately, I fear he may not.”

The unanimous ruling from the 9th Circuit went further than the one from the 2nd Circuit, striking the law on the grounds that it placed an “undue burden” on a woman’s right to an abortion and was unconstitutionally vague.

The 9th Circuit also upheld a lower court finding that the act “created a risk of criminal liability for virtually all abortions performed after the first trimester, which the district court found, placed a substantial obstacle in the path of abortion-seekers.”

Although the 2nd Circuit also toppled the federal law, the circuit’s Chief Judge John M. Walker made it clear that he took no pleasure in doing so. He said the court was “compelled by a precedent to invalidate a statute that bans a morally repugnant practice.”

The 8th Circuit in St. Louis last July became the first court to find the ban constitutionally flawed. The Justice Department already has asked for a Supreme Court review of the 8th Circuit ruling, a request the justices could consider at their next conference Feb. 17. But since the court has its last round of oral arguments for this term scheduled for April, it is possible that the court’s consideration of the issue could be put off until the October term.

About 90% of the 1.3 million abortions performed in the U.S. annually take place in the first trimester of pregnancy. The federal statute banning the late-term abortion procedure would not affect those abortions.


The law struck down Tuesday focuses on second-trimester abortions that are performed for a variety of reasons, including the mother’s health and fetal anomalies discovered by modern medical procedures such as amniocentesis.

At issue in the case is a procedure that most doctors refer to as intact dilation and extraction, which involves partially removing a fetus from the uterus and puncturing or crushing the skull.

Justice Department lawyers, who have defended the statute, have argued that the procedure causes fetal pain, blurs the line between abortion and infanticide and is not medically necessary.

Advocates of abortion rights, as well as many doctors and organizations such as the California Medical Assn., contend that the procedure in some instances is medically necessary.

The 9th Circuit decision cited those opinions in its 3-0 ruling Tuesday, written by Judge Stephen Reinhardt, an appointee of Jimmy Carter. He was joined by judges William A. Fletcher and Sidney R. Thomas, both Clinton appointees.

The federal law was challenged by the Planned Parenthood Federation of America, Planned Parenthood Golden Gate and the city and county of San Francisco. The plaintiffs asserted that the law was so vaguely worded that it would effectively prohibit all forms of dilation and extraction. The 9th Circuit agreed.


Reinhardt also emphasized that the record did not support contentions that a medical consensus exists that the procedure is never necessary to preserve a woman’s health.

The 9th Circuit upheld a permanent injunction against the law, issued by U.S. District Judge Phyllis Hamilton in San Francisco in 2004.

“We’re very happy that the 9th Circuit recognized that the statute suffers from significant constitutional flaws and would endanger the health and safety of women if enforced,” said Eve C. Gartner, a lawyer for the Planned Parenthood Federation of America, who argued the case.

But she said her joy was tempered by what she thinks Alito’s ascendancy to the high court portends.

Alito was on an appellate panel that unanimously overturned a New Jersey ban on the late-term procedure, but Gartner said Tuesday that “as a 3rd Circuit judge, he was obliged to follow the law as the Supreme Court laid it out.... Now, as a Supreme Court justice, it is highly unclear whether he will consider himself bound by that precedent.”

Erwin Chemerinsky, a liberal Duke University law professor, praised the 9th Circuit ruling as “very thorough,” but agreed that it could be nullified because of the changed composition of the Supreme Court.


Douglas Kmiec, a conservative constitutional law professor at Pepperdine Law School in Malibu, said he, too, thought the newly configured Supreme Court would reinstate the ban.

“The fact that some abortion doctors want to keep up a gruesome practice does not make it medically necessary under the substantial evidence standard,” Kmiec said.

Added Kmiec: “I count to five [votes] today for reversal.”