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The Nation

3 Trials Tackle Curb on Abortion

Cases challenging a new federal ban on late-term procedures are expected to turn almost solely on the dueling testimony of medical experts.

March 30, 2004|Lee Romney and John J. Goldman | Times Staff Writers

SAN FRANCISCO — 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.

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