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Judge Voids Ban on Abortion Procedure

Law on 'partial birth' operation doesn't meet Supreme Court guidelines, jurist rules.

June 02, 2004|Lee Romney | Times Staff Writer

SAN FRANCISCO — A U.S. District Court judge declared Tuesday that a federal ban on a controversial abortion procedure is unconstitutional, forbidding the enforcement of the law in hundreds of clinics and doctors' offices across the country.

U.S. District Judge Phyllis J. Hamilton said the ban was flawed in much the same way as a similar ban passed by Nebraska but overturned by the U.S. Supreme Court four years ago. She granted a permanent injunction prohibiting enforcement of the ban against the plaintiffs: Planned Parenthood Federation of America and its affiliates and clinics nationwide as well as physicians to whom they refer patients.

The Partial Birth Abortion Ban Act, signed into law by President Bush last year, was the first federal law to outlaw 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 a procedure that most doctors call "intact dilation and extraction," which involves partially removing a fetus from the uterus and puncturing or crushing its skull.

Federal judges in New York and Nebraska have heard similar challenges to the law, and rulings are expected soon. Altogether, the plaintiffs in the combined cases represent the majority of abortion providers nationwide.

Government attorneys defending the ban in the three trials argued that the procedure causes fetal pain, blurs the line between abortion and infanticide, and is not medically necessary.

Abortion advocates and major medical associations dispute those charges and said the ban on the procedure was so vague as to limit most medically necessary second-trimester abortions.

In a 117-page decision, Hamilton said the ban imposed an undue burden on a woman's right to choose, was unconstitutionally vague in its description of the barred medical procedure and failed to include an exception to protect a woman's health.

President Bush condemned the ruling. Other proponents of the ban said they expected to lose in front of Hamilton, an appointee of President Clinton whom they view as liberal, but they remained optimistic that the U.S. Supreme Court would ultimately decide in their favor.

Opponents, meanwhile, hailed Hamilton's ruling.

"It's a major decision," said Dian Harrison, president and chief executive of Planned Parenthood Golden Gate, which filed suit in the San Francisco case against Atty. Gen. John Ashcroft to block enforcement of the law. "It says to our current administration and our Congress that they can't make medical decisions for women in this country."

U.S. Department of Justice officials vowed to appeal, saying the department "will continue to devote all resources necessary to defend this act of Congress."

All three cases challenging the law focused heavily on the testimony of dueling medical experts, who offered diverging views on whether and when the procedure was necessary, how common and safe it was, and whether fetal pain existed.

Ninety percent of the 1.3 million abortions performed in America each year take place in the first trimester, which the federal law does not affect. Second-trimester abortions are performed for a variety of reasons, including concerns about the woman's health if the pregnancy continues, and fetal anomalies. Supporters and opponents of the law differ widely on how many second-trimester abortions it would ban.

Supporters of the law say it would affect only 2,200 to 5,000 abortions, but opponents say virtually any second-trimester abortion could be affected.

Government witnesses in San Francisco testified that partially delivering the intact fetus before collapsing the skull and removing it from the uterus was unsafe and unnecessary. But physicians testifying for the plaintiffs said that method could be safer than the more common form of "dilation and extraction," in which the fetus is dismembered with forceps in multiple passes into the uterus.

"Dilation and extraction" is used in the majority of second-trimester abortions. Although it was not explicitly banned by the act, the physicians who testified said that they often do not know when they begin a procedure whether they will use forceps or partially remove the intact fetus. Those decisions depend on a range of issues that emerge during the procedure, including the degree of cervix dilation, and should be up to the physician, they testified.

Plaintiffs, including Planned Parenthood Golden Gate and the city and county of San Francisco, argued that the vaguely worded ban would effectively prohibit all forms of dilation and extraction, and Hamilton appeared to agree.

"A majority of the physicians who testified noted that because they 'fear prosecution, conviction and imprisonment,' the wide net cast by the act could have and has already had the effect of impacting all pre-viability second-trimester abortion services that they provide to their patients," Hamilton wrote.

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