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Abortion method returns to justices

Supporters of a law banning `partial-birth' procedures are counting on Alito to provide the key vote in the case.

November 07, 2006|David G. Savage | Times Staff Writer

WASHINGTON — When Douglas Johnson, the lobbyist for the National Right to Life Committee, first heard a description 14 years ago of a midterm abortion procedure, he felt a sense of revulsion and saw an opportunity.

He was convinced that if most Americans knew about it, they would think differently about abortion.

Johnson and a congressman coined a name for it: "partial-birth abortion." The antiabortion group obtained and widely distributed a set of line drawings that illustrated the procedure. Johnson said he thought "the reaction of many Americans to seeing a drawing of this would be to say: 'This can't be legal.' "

Whether that procedure, known medically as dilation and extraction or D&X, will be legal comes before the Supreme Court on Wednesday, the day after the midterm elections.

With two new Bush appointees on the court -- one replacing a justice who supported abortion rights -- Johnson and other abortion opponents are optimistic that, for the first time, the court will uphold an outright ban on an abortion method.

The campaign against the procedure has succeeded where other attacks on abortion failed.

By branding it gruesome and unnecessary, Johnson won broad support for a criminal ban, even from lawmakers who usually vote in support of abortion rights. And he tapped into the public's public discomfort with abortions late in a pregnancy. A 2003 CNN/USA Today/Gallup Poll showed, by a ratio of more than 2 to 1, that Americans believe abortion should be illegal in the second trimester.

A win for Johnson and abortion foes would chip away at the court's 1973 Roe vs. Wade decision, which held that women have a constitutional right to an abortion.

Those fighting a ban argue that the disputed procedure is sometimes the safest method for aborting a fetus in midterm and, despite the attention it receives, is not commonly used.

Johnson, 55, first heard about it in 1992, when someone mailed an Ohio doctor's account to his organization. In the procedure, performed in the fifth or sixth month, the fetus is pulled partway out of the dilated cervix and the skull punctured to collapse it, allowing the fetus to be removed intact from the uterus.

Working out of a small, drab Washington office, Johnson tried to shift the focus of the abortion debate from the rights of pregnant women to the fetuses. He walked the halls of Congress with a briefcase that included a plastic model of a 20-week-old fetus that he used to make his case.

Relentless, Johnson was dubbed "the most effective lobbyist in Washington" by a conservative magazine.

Twice in the 1990s, Congress passed bills to outlaw the procedure, except to save a mother's life, but President Clinton vetoed them. He said he would sign such legislation if lawmakers added an exception for when the procedure was needed to preserve the health of the woman.

Abortion foes refused. They distrusted health exceptions, believing they would render a ban meaningless. Roe vs. Wade had defined health to include emotional, psychological, familial and age factors.

Based on language drafted by Johnson's office, 30 state legislatures had enacted bans by the late 1990s.

In 2003, President Bush signed the Partial-Birth Abortion Ban Act without an exception for health concerns.

It's not clear that the ban would affect many abortions. Only 1% to 2% of abortions take place after the 20th week of pregnancy.

Of these, about 3,000 to 5,000 per year are done with D&X. Doctors say only a small percentage of those are done because of medical complications or fetal deformity.

Johnson's attack on the procedure put the abortion-rights movement on the defensive. Its leaders argue that abortion has been and should remain a private matter between a woman and her doctor.

They also say there is something profoundly illogical about a ban on one method: If abortions are legal at the 20th week of pregnancy, why forbid doctors to use a method that might be the safest?

" 'Partial-birth abortion' is a political term. It's about generating public outrage. It's not a medical term," said Dr. Deborah Oyer, a Seattle physician who does midterm abortions but not the D&X procedure. She said she resents legislators trying to regulate the practice of medicine.

"Doctors want to do what is best for the patient. This is all about keeping the abortion issue before the public," she said.

Six years ago, the Supreme Court struck down Nebraska's ban on the procedure. The 5-4 majority, which included now-retired Justice Sandra Day O'Connor, said the ban violated a woman's right to abortion because it did not include a health exception.

Dr. Leroy Carhart, an abortion doctor from Bellevue, Neb., had challenged the state law as unconstitutional. During a two-week trial, Carhart and several medical experts testified that the D&X procedure was sometimes safer because there was less risk of bleeding and infection.

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