updated 4/9/2004 8:44:25 PM ET 2004-04-10T00:44:25

Lawyers for both sides rejected as unnecessary a judge’s offer Friday to have a medical expert help him decide a challenge to the Partial-Birth Abortion Ban Act.

U.S. District Judge Richard Kopf made the offer earlier in the day, saying he wanted to dispel any perception that he was partial to the anti-ban plaintiffs.

Kopf noted comments made Monday by Rep. Steve King, a member of the House Judiciary Committee, after he sat in on trial testimony.

The Iowa Republican told reporters that Congress had determined “a partial-birth abortion is never necessary to protect the health of the mother.”

“I don’t think it’s possible for a single judge to sit in a courtroom and substitute his findings for the findings of 435 congressmen,” King said, adding that some judges were imposing their personal views on society.

Challenges stall enforcement of law
The federal law, which has not been enforced because of legal challenges around the country, bars a procedure that opponents call “partial-birth abortion,” but that doctors call “intact dilation and extraction,” or D&X. The late-term abortion procedure involves partially removing a fetus from the womb and puncturing or crushing its skull.

Lawyers from the Center for Reproductive Rights in New York challenged the law on behalf of Bellevue abortion provider Dr. LeRoy Carhart and three other physicians.

Carhart and his lawyers said the law is vague and could be interpreted as covering more common procedures, including “dilatation and evacuation.” Known as D&E, it is the most common method of second-trimester abortion.

In testimony Friday afternoon that completed the government’s case, Charles Lockwood, an obstetrician at Yale University School of Medicine, agreed that the D&X ban could affect more common abortion procedures.

“It might be construed by overzealous prosecutors to outlaw all D&Es” in the second trimester, said Lockwood.

Call for more study
He also said there’s no evidence a D&X is safer or not as safe as D&E procedures and that the issue needs more study.

Priscilla Smith, an attorney with the Center for Reproductive Rights, said she believes her side had a full and fair opportunity in court, and that it was unnecessary for Kopf to consult with a medical expert.

She said it was unlikely another expert could be found who would be more qualified than those who testified in the two-week trial.

Justice Department attorney Terry Henry agreed.

“I don’t think there is a need for it,” Henry said.

Final arguments in the case were tentatively set for June 2. Kopf said he would try to have a decision by mid-August.

Judges in Lincoln, New York and San Francisco agreed to hear evidence in three simultaneous non-jury trials on whether the ban violates the Constitution.

About 1.3 million abortions are performed in the United States each year, and almost 90 percent occur in the first trimester. The total includes an estimated 140,000 D&Es and 2,200 to 5,000 D&Xs.

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