Court battle over abortion law begins in 3 cities

Enforcement of U.S. ban on procedure is on hold pending legal challenges

March 30, 2004|By E.A. Torriero | E.A. Torriero,CHICAGO TRIBUNE

LINCOLN, Neb. - Judges in three courtrooms across the nation began hearing yesterday the first legal challenges to a new federal law banning certain types of abortions.

The cases in New York, San Francisco and Lincoln, brought by physicians who perform abortions and abortion-rights groups, center mostly on what some lawmakers define as "partial-birth" abortion and what doctors call "intact dilation and extraction."

Congress passed a prohibition on such procedures and President Bush signed it into law in November. It is the most sweeping curb since the U.S. Supreme Court's Roe vs. Wade ruling legalized a woman's right to abortion in 1973.

Opponents claimed in courtrooms yesterday that the law is not specific and does not take the status of a woman's health into account. Government lawyers argued yesterday that the procedure is not only unnecessary but also inhumane.

During such abortions, which are usually performed in the second trimester and occasionally in the third, a fetus is partially delivered and its skull is punctured. An estimated 2,200 to 5,000 such procedures are performed annually in the United States, out of 1.3 million total abortions.

The U.S. Supreme Court struck down a similar Nebraska ban in 2000. Yesterday, Dr. LeRoy Carhart, who fought that state law, returned to court - this time as a plaintiff against the federal government.

"The fight continues," he said after the government and abortion-rights attorneys presented their opening statements before U.S. District Court Judge Richard Kopf.

The ban, carrying a maximum two-year prison term for doctors convicted of performing the procedure, is on hold pending legal actions.

Activists chose to challenge the law in three symbolic venues across the country. Along with several doctors, the National Abortion Federation is spearheading the challenge in New York; the Planned Parenthood Federation of America and others brought the San Francisco case; and Carhart along with the Center for Reproductive Rights is in court in Lincoln.

Because of the long legal battle waged in Nebraska by Carhart - and Kopf's familiarity with the evidence and legal nuisances - the Lincoln hearing is expected to be a bellwether for future appeals, legal observers said.

Opponents of the ban are banking that courts will follow precedent and rule in their favor.

"Five courts ... have said that the law must include an exception for the health of the mother," Priscilla Smith, attorney for Carhart and the plaintiffs, told Kopf.

Procedures for terminating pregnancies are varied, Smith told Kopf, and are usually the discretion of the doctor. Therefore Congress cannot issue a sweeping ban, she said.

"Physicians have learned to expect the unexpected," said Smith, who is expected to present more than a dozen doctors and experts in the next two weeks.

But lead U.S. Attorney Anthony Coppolino argued that because the procedures are varied, Congress could not be expected to be specific in its language.

"We can't seem to get a common term," he said about the disagreements between both sides over how to define the abortions in dispute.

Coppolino promised to present updated evidence and experts to convince Kopf that Congress acted based on new, detailed information. But Kopf, who read pretrial transcripts of Congress' debate, indicated he would be hard to convince.

"I don't see [that] Congress spent anywhere near the effort that you folks did in trying to give me a clear picture," he told the attorneys.

Kopf seemed to view the bipartisan bill more as a political creation than a legislative one. Some lawmakers have termed the abortions "barbaric."

"The question really is, `Does Congress really care about whether the procedure is unsafe or not?'" he asked.

Kopf said he is troubled by being put in a position of having to rule on intangible circumstances - and not specific cases - while weighing competing medical evidence.

"Why in the world should I be speculating on these abstracts?" he asked.

Some experts will testify in all three venues. It is possible that in the end, the judges will not agree.

"That indeed could happen," said R. Alta Charo, a professor of law and ethics at the University of Wisconsin-Madison. "But there will be appeals, and it will end up in the Supreme Court anyway."

The Chicago Tribune is a Tribune Publishing newspaper.

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