WASHINGTON -- A federal appeals court, in the first decision overturning a state abortion law under a new Supreme Court ruling, struck down yesterday the tough new Louisiana law that seeks to make abortion a crime throughout pregnancy.
The decision by a three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans voided one of the nation's most severe abortion bans -- a law that could mean up to 10 years of "hard labor" in jail for doctors convicted under it.
An appeal to the Supreme Court seems likely, possibly testing whether the court's new 5-4 majority in favor of some abortion rights would hold for a law that goes far toward criminalizing all abortions.
A most unusual facet of the Circuit Court's ruling yesterday was that one of the judges, who had come close last year to being chosen for the Supreme Court by President Bush, used the case to declare his personal view that abortion should not be a constitutional right at all.
Circuit Judge Emilio M. Garza, in a rare statement of views flatly contradicting the Supreme Court, lined up with the Supreme Court's dissenting justices on the abortion rights issue, accused the Supreme Court of misusing its powers and declared:
"Because the decision to permit or proscribe abortion is a political choice, I would allow the people of the state of Louisiana to decide this issue for themselves."
But, Judge Garza added, the Supreme Court's June decision "controls" the fate of the 1991 Louisiana anti-abortion law, so he joined in ruling it unconstitutional.
Predictably, Judge Garza's remarks were drawn immediately into this year's politics, because the future of abortion rights is a major issue in the presidential campaign. The court's last decision on June 29, partly reaffirming Roe vs. Wade, was a 5-4 ruling, and Judge Garza's statements were an almost unmistakable hint that, if he were named to the court, he could supply a fifth vote to overturn Roe.
Last year, when Mr. Bush picked Justice Clarence Thomas, Judge Garza was a "finalist" on the White House's shortest list of potential nominees to the Supreme Court. He is a 45-year-old, Texas-born judge who has risen rapidly in the federal judiciary; he is known to be very conservative in his views.
Kathryn Kolbert, an abortion-rights lawyer involved in the Louisiana case, said the Garza opinion "clearly is a political document. It would have been one thing if any old circuit judge had written this; but Judge Garza knows his views on abortion will be closely watched."
Meanwhile, the National Right to Life Committee, while noting that Judge Garza's gesture was unusual, nonetheless embraced its content. The group's president, Wanda Franz, remarked: "As Judge Garza said in his concurring opinion, [the Supreme Court's June decision] in effect strips the people of America of the ability to give any direct protection to unborn children."
Under the Louisiana law, passed over the governor's veto, abortion would be a crime throughout pregnancy -- although women could not be prosecuted for having abortions. Doctors could be prosecuted and, if convicted, could get up to 10 years in prison "at hard labor" plus fines up to $100,000.
The law made no exceptions for abortions when a pregnancy would pose a grave threat to the woman's health, but would allow abortion if pregnancy were ended "for the express purpose of saving the life of the mother." In very limited circumstances, the law also would allow abortion in cases of pregnancy resulting from rape or incest.
If the state appeals to the Supreme Court, and the justices agree to hear the case, it would be the first time since the 1973 Roe decision that a state law criminalizing abortion was before the court.
A criminal ban on abortion in Guam is already awaiting the justices' reaction. That law was ruled unconstitutional before the Supreme Court's June ruling. The justices have not yet decided whether to hear the Guam appeal.