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Action on Ban Is Unlikely, Even Its Supporters Agree

The high court would have to go back on its ruling upholding the 'partial-birth' option.

October 22, 2003|David G. Savage | Times Staff Writer

WASHINGTON — The ban on "partial-birth" abortions that received final congressional approval Tuesday has little chance of taking effect unless or until the Supreme Court changes its mind on the matter, even advocates of the legislation say.

Three years ago, the court, on a 5-4 vote, struck down a similar law from Nebraska because it prevented doctors from performing a kind of midterm abortion that they felt was safer for some patients.

In its 1973 decision in Roe vs. Wade, the court had agreed that women could, under the constitutional right to privacy, choose an abortion before the time the fetus could live on its own -- which is after about the sixth month of a pregnancy.

While about 90% of abortions take place in the first three months of a pregnancy, some women wait longer -- until the fourth or fifth month. Then, surgery is required, and the dispute concerns how this surgery is performed.

After the woman is given anesthesia, the doctor uses instruments to remove the fetus. Usually, this occurs through "dismemberment," in which the fetus is removed in parts. Some doctors seek to remove the fetus intact, since they contend that there is less chance of causing injury and bleeding to the mother.

The first procedure, dismemberment, has not been challenged. The legislation approved Tuesday would make the second, commonly known as dilation and extraction, a crime because the fetus is partly outside the womb when it dies.

This is "a gruesome and inhumane procedure that is never medically necessary," Congress said in enacting the ban on the second procedure. Moreover, it is "the very informed judgment of the Congress" that this procedure "poses serious risks to a woman's health," the bill says.

Most of the federal judges who have looked into the controversy agree that the surgical procedures could be described as gruesome, but they disagree on which is safer for the patients.

In the Nebraska case, a federal judge appointed by President George H.W. Bush conducted a trial to hear from medical experts and wrote a 71-page opinion concluding that "intact removals" were safer because there was less bleeding and a lower risk of infection.

Nebraska's law had been challenged by Dr. Leroy Carhart, the only physician in the state who performed midterm abortions.

The U.S. 8th Circuit Court of Appeals in St. Louis upheld that conclusion in a ruling by a three-judge panel that included two appointees of President Reagan.

When Nebraska's attorney general, Don Stenberg, appealed again, the Supreme Court affirmed the lower courts' decisions.

A "significant body of medical opinion believes [this] procedure may bring with it greater safety for some patients," wrote Justice Stephen G. Breyer in Stenberg vs. Carhart, and for that reason the state may not prohibit doctors from using the procedure.

Even the leading proponents of the bill passed Tuesday agree that the new legislation will likely not take effect until the Supreme Court considers the issue.

"We think that holding was sweeping and extreme. They are saying that the doctor has a right to use the method that he feels is the healthiest," said Douglas Johnson, legislative director of the National Right to Life Committee. "So we hope that by the time this gets before the Supreme Court, there will be a switch of at least one vote."

The authors of the legislation appear to have solved one problem cited in past court rulings: They gave a detailed description of the banned procedure, so challengers cannot claim that the new law is vague in what it forbids.

The American Civil Liberties Union, on behalf of the National Abortion Federation; the Center for Reproductive Rights, representing Carhart; and the Planned Parenthood Federation of America are preparing lawsuits to block the new law.

"The chances of this being held constitutional are absolutely zero," said David J. Garrow, an Emory University legal historian who has studied abortion law.

"If you want to go down the path of gaming this out, the best [antiabortion groups] could hope for is the departure of John Paul Stevens in 2005, and him being replaced by a [nominee of] reelected President Bush," he said.

Stevens, who is 83, joined Breyer's opinion, as did Justices Sandra Day O'Connor, 73; David H. Souter, 64; and Ruth Bader Ginsburg, 70.

While Justice Anthony M. Kennedy, 67, dissented in the Nebraska case, he has also voted to uphold the basic right of women to choose abortion.

The other members of the high court -- Chief Justice William H. Rehnquist, 79, and Justices Antonin Scalia, 67, and Clarence Thomas, 55 -- want to overturn the right to abortion.

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Times staff writer Janet Hook contributed to this report.

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