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U.S. judge blocks partial-birth abortion ban

/ Source: The Associated Press

A federal judge Tuesday indefinitely blocked the Bush administration from enforcing the Partial-Birth Abortion Ban Act against Planned Parenthood Federation of America clinics and their doctors, who perform roughly half the nation's abortions.

U.S. District Judge Phyllis Hamilton, ruling in one of three lawsuits challenging the legislation President Bush signed last year, said the first substantial law limiting a woman's right to choose was an unconstitutional infringement of three decades of Supreme Court precedent.

“The act poses an undue burden on a woman's right to choose an abortion,” Hamilton wrote in her 120-page opinion.

Federal judges in New York and Nebraska also heard challenges to the law earlier this year but have yet to rule. The challenge, one of the three opposing Bush's legislation, was brought by the Planned Parenthood Federation.

The government should not be intruding’
Planned Parenthood lawyer Beth Parker welcomed the ruling, saying it sends a “strong message” to Attorney General John Ashcroft and the Bush administration “that the government should not be intruding on very sensitive and private medical decisions.”

In a statement, the Bush re-election campaign said: “Today’s tragic ruling upholding partial birth abortion shows why America needs judges who will interpret the law and not legislate from the bench. ... John Kerry’s judicial nominees would similarly frustrate the people’s will and allow this grotesque procedure to continue.”

Rep. Steve Chabot, R-Ohio, the chief sponsor of the House bill, said the abortion method “has no place in a civilized society,” and predicted the Supreme Court would decide the outcome.

Justice Department spokeswoman Monica Goodling said the government “will continue to devote all resources necessary to defend this act of Congress, which President Bush has said ’will end an abhorrent practice and continue to build a culture of life in America.”’

The Kerry campaign had no immediate comment.

Frist expresses disappointment

Senate Majority Leader Bill Frist, a Tennessee Republican and a key backer of the ban, said he was disappointed by the ruling and predicted it would eventually be overturned. Frist, who is a medical doctor, called the abortion procedure that was outlawed by the act “barbaric” and “outside the bounds of the practice of medicine.”

Bush signed the bill in November, saying “a terrible form of violence has been directed against children who are inches from birth while the law looked the other way.”

In the banned procedure, which the government said was never medically necessary, a doctor partially removes a living fetus from the womb before puncturing or crushing its skull. Justice Department attorneys argued that dismembering the fetus in the woman's womb, and removing it in parts, was more humane than having a living fetus partially delivered before killing it.

“There is a substantial state interest in protecting potential life,” Scott Simpson, the government's attorney who defended the act, argued before Hamilton last month.

He argued that the banned procedure “blurs the line of abortion and infanticide.”

Abortion defenders, however, argued that a woman's health during an abortion is more important than how the fetus is terminated, and that the banned method is often a safer solution.

The measure, which President Clinton had twice vetoed, was a fundamental departure from the Supreme Court's precedent in Roe v. Wade. It shifted the debate from a woman's right to choose and focused on the plight of the fetus.

Violation carries two years in prison
Abortion defenders said the law was the government's first step toward outlawing abortion. Violating the law carries a two-year prison term.

Late last year, Hamilton, a Clinton appointee, and federal judges in New York and Lincoln, Neb.,  tentatively blocked the act from being enforced pending the outcome of the court challenges.

They began hearing testimony March 29.

Doctors have interpreted the Supreme Court's decision in Roe. v. Wade to mean they can perform abortions usually until a period between the 24th to 28th week after conception, or until the “point of viability” when a healthy fetus is thought to be able to survive outside the womb. Generally, abortions after that point are performed only to preserve the mother's health.

Doctors at about 900 abortion clinics perform about half of the nation's 1.3 million annual abortion, practicing under the Planned Parenthood umbrella. 

The Nebraska and New York cases are expected conclude within weeks. The outcomes, which may conflict with one another, will likely be appealed to the Supreme Court.

Two other cases still pending
The New York case was brought by the National Abortion Federation, which represents nearly half the nation's abortion providers. The Nebraska case was brought by a handful of abortion doctors.

The U.S. Supreme Court had overturned a Nebraska partial-birth abortion law because it did not allow the banned procedure even when a doctor believes the method is the best way to preserve the woman's health.

To get around the decision, Congress simply declared that the procedure is never medically necessary — and during weeks of testimony, doctors testifying for the government stressed that same point, claiming there are better alternatives to the method, and that it may even be harmful to women.

Witnesses for the abortion providers, however, testified in all three trials that the banned method is often preferred and sometimes necessary to preserve a woman's health.

Congressional sponsors said the ban would outlaw only 2,200 or so abortions a year. But abortion providers testified the banned method can happen even at times when doctors try to avoid it, such as when they attempt to remove the fetus from the womb in pieces, which is acceptable under the Partial-Birth Abortion Ban Act.

2nd-trimester procedures seen as imperiled
Because of the possibility that the fetus may partially exit a woman during an acceptable procedure, abortion rights advocates said the law endangers almost all second-trimester abortions, which account for about 10 percent of all abortions in the United States.

Partial birth is not a medically accepted term, but as defined by the bill it is the “intentional delivery of a fetus until, in the case of a headfirst presentation, the entire fetal head is outside the body of the mother, or, in the case of the breech presentation, any part of the fetal trunk past the navel is outside the body of the mother for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus.”

The San Francisco case is Planned Parenthood v. Ashcroft, 03-4872. The New York case is National Abortion Federation v. Ashcroft, 03-8695. The Nebraska case is Carhart v. Ashcroft, 03-3385.