U.S. court strikes down curb on late abortions Ohio law ignored risks to mental health, judges say

November 19, 1997|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- A federal appeals court sharply narrowed yesterday the authority of states and Congress to ban abortions late in pregnancy, ruling that such bans must allow women to end pregnancies to avoid serious mental or physical health risks.

In the first decision by an appeals court on the issue, the 6th U.S. Circuit Court of Appeals based in Cincinnati struck down a 1995 Ohio law that bars doctors from using an abortion method that has sparked vehement opposition -- the "dilation and extraction" (D&X) procedure. Under the procedure, a doctor collapses the skull of a fully formed fetus to remove the body from the woman's body and complete the abortion.

The procedure is used most often late in the second trimester of pregnancy, between the 20th and 24th weeks. There is a wide dispute on how often it is used. Whatever its frequency, it has become the new focus of the abortion debate. Congress and state legislatures have singled out the procedure in an effort to begin a rollback of abortions.

Congress has twice sought to ban the D&X procedure when used after the fetus has been partially delivered alive. President Clinton has vetoed the bans, saying they did not protect a woman's life and health. His second veto awaits an override attempt by Congress.

Abortion rights supporters claimed that the decision yesterday was a broad warning to Congress and state legislatures not to go too far. Abortion foes argued that the ruling would have little effect on Congress' effort to ban late-term abortions.

Janet Benshoof, president of the Center for Reproductive Law and Policy, an abortion rights group, said the ruling makes clear "to policy-makers across the nation that they cannot enact bans on specific abortion methods nor impose extreme restrictions on later abortions that jeopardize women's lives and health."

The ruling, her group said, "is a decisive victory for doctors and women's reproductive freedom."

But Douglas Johnson, legislative director of the National Right to Life Committee, which is leading the opposition to late-term abortions, said the Ohio law does not even deal with the situation Congress seeks to cover -- an abortion achieved by killing the partially delivered fetus.

The key to the federal legislation, Johnson said, "is the location of the baby" when the procedure is used. "We think the federal bill can be upheld [in court] because of this difference." The appeals court's decision said it was deciding nothing about the constitutionality of Congress' measures. The ruling, though, imposed significant restrictions on any bans on a specific abortion method, even a ban that would apply only to late-term abortions -- the point at which the Supreme Court has allowed the most control on abortion.

The appeals court struck down the law for these main reasons: The law bans the skull-collapsing method throughout the second trimester -- a period when women's abortion rights are generally protected.

By reaching that far, the appeals court said, the law intrudes on a woman's right to an abortion before the fetus is capable of living outside the womb.

Though states have more power to ban abortions after the fetus becomes viable, the Ohio law is invalid for abortions in that stage because it does not allow the D&X method to be used to protect a pregnant woman from suffering "severe, irreversible risks of mental and emotional harm."

The law does not give doctors enough protection against prosecution because even if they use the procedure in the belief that the medical risks require it, they can be second-guessed later.

Pub Date: 11/19/97

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