Abortion procedure fight likely headed for high court

Timing of test case could land issue in middle of presidential election

The nation

October 28, 1999|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- The constitutional battle over the current campaign against abortions -- a fight that has been unfolding over the past three years -- appears to be headed, probably soon, to the Supreme Court.

At issue will be 30 states' laws designed to criminalize a method of abortion most often used late in pregnancy.

None of the laws has been enforced against any doctor, because they were struck down or because state officials were uncertain about their legal fate. Maryland has no such law.

Although supporters of those laws say they are aimed at one, relatively rare, abortion technique, opponents of the laws argue that they are written so vaguely that that they could stop abortion at all stages of pregnancy.

If the first test case reaches the Supreme Court within the next few weeks, as seems probable, the court could issue a final decision by early summer, returning the abortion issue to prominence in the midst of next year's presidential campaign.

Opposite rulings

With two appeals courts taking opposite positions on the constitutional questions raised by such laws, it is more likely that the Supreme Court will be ready to decide the constitutional questions when a case reaches it.

The court has not issued an abortion decision since 1992, when it partly reaffirmed the original abortion ruling from 1973, Roe vs. Wade, and kept intact most of the rights of women to seek abortions.

An early resolution of the constitutionality of the anti-abortion laws seemed more likely after a decision this week by the federal appeals court that is based in Chicago -- the first appeals court to uphold such laws.

The 7th U.S. Circuit Court of Appeals found no constitutional problem with the laws in Illinois and Wisconsin, so long as they are enforced only against the single, late-pregnancy method -- called "partial birth abortion" by its opponents -- that state legislatures say they had targeted.

A month ago, the 8th U.S. Circuit Court of Appeals based in St. Louis became the first court at that level to rule on the new type of anti-abortion law, and it struck down such laws in Arkansas, Iowa and Nebraska.

Before that, all of the disputes over such laws had been confined to lower courts. Twenty-one challenges to such laws have been filed, and all but one of the laws has been found unconstitutional.

Similar state laws

Most of the state laws are similar to, and some are identical to, a law passed by Congress in 1997 but vetoed by President Clinton. A new effort to pass a federal law is being made in Congress this year, but that, too, faces a likely veto.

It appeared yesterday that a case involving the Nebraska law could be the first to be appealed to the justices. That state's chief deputy attorney general, Steve Grasz, said the state had been thinking of waiting until December to appeal the St. Louis decision, but in the wake of the Chicago court's ruling, an appeal is "more likely sooner rather than later." The Chicago decision, he said, gives Nebraska "the strongest argument" for its law.

Abortion-rights forces who lost the Chicago decision do not have a timetable for taking that ruling to the Supreme Court. But they expect to ask the justices to consider the appeals of the two recent decisions together, said Simon Heller, litigation director for the Center for Reproductive Law and Policy, a legal advocacy group that favors abortion rights and has led the effort to strike down the new wave of anti-abortion statutes.

Heller said his group will try to get the Chicago decision's effective date postponed until after the Supreme Court acts.

The abortion technique at issue is known by doctors as dilation and extraction, or D & X. The technique has become widely known as "partial-birth abortion," a name favored by abortion foes because it implies that the fetus has been partly born before it is killed.

That name is resisted by those who favor abortion rights, but they say privately that they have found no other label to apply.

The fetus is partly removed, feet-first, from the uterus to the vagina, and then its head is pierced or crushed to make it small enough to complete delivery. The fetus is dead when delivered.

The 7th Circuit in Chicago, in its ruling this week, said that "it is this combination of coming so close to delivering a live child with the death of the fetus by reducing the size of the skull that causes the adverse public [and legislative] reaction."

Opponents of the technique, it went on, "deem the D & X procedure needlessly cruel and bordering on infanticide."

Those who believe the D & X method should be allowed argue that it is rarely used, and only in cases of extreme medical necessity to protect the woman.

Concern over language

The Chicago court split 5-4 on Tuesday in upholding the laws of Illinois and Wisconsin. The majority conceded that the law's language is general enough that it might be understood -- especially by a doctor worried about being prosecuted -- as covering early-pregnancy abortions, too.

But, the court ruled, the laws can be interpreted as targeting only the D & X procedure, especially because the two states' attorneys general vowed that they would be enforced only against that particular procedure.

The court said it was issuing an order to block enforcement of the Illinois and Wisconsin laws for any other procedure, giving doctors clear notice of what is forbidden by the laws.

"With that assurance in hand," doctors "would not face any substantial threat of prosecution," the majority said.

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