Reinstatement of law on abortions sought

Legislation banned late-term procedure

September 27, 2005|By David G. Savage | David G. Savage,Los Angeles Times

WASHINGTON -- Bush administration lawyers asked the Supreme Court yesterday to reinstate the first federal law banning a late-term abortion procedure, arguing that it should be outlawed because it is gruesome and is "never medically indicated" as a safer surgical procedure.

The government's appeal asks the court to overturn the decision of a U.S. appeals court in St. Louis, which struck down the federal law as unconstitutional.

It came on the same day the Senate took up the nomination of Judge John G. Roberts Jr. as chief justice of the United States.

If, as expected, he is confirmed this week, the Roberts court could put some new limits on abortion during its first term, which will begin Monday.

Dispute is a rerun

The dispute over this type of abortion - known medically as intact dilation and extraction - amounts to a rerun of a case heard five years ago by the court, but the outcome is in doubt this time because the court's makeup is changing.

In 2000, the justices ruled 5-4 to strike down a Nebraska law that made it a crime for a doctor to remove much of a fetus intact during a midterm abortion. That procedure is used by some doctors who perform abortions in the fifth or sixth month of a pregnancy.

In the past, the Supreme Court had said that women can choose to end their pregnancies until the time a fetus can live on its own, which occurs after the sixth month of a pregnancy. These later-term abortions are more complicated than early abortions, and only a few doctors perform them.

In Nebraska, Dr. Leroy Carhart was the only physician who performed midterm abortions. In 1997, he filed a legal challenge to a state law banning the late-term procedure, contending that the law was unconstitutional. He testified that the "intact" removals were safer and less risky than other methods because there was less chance of bleeding and infection.

Other medical experts backed up his testimony, agreeing that in some instances that procedure was a better method of performing abortions.

A federal judge in Nebraska, the U.S. Court of Appeals in St. Louis and ultimately the Supreme Court invalidated the law in 2000. The Supreme Court opinion said that "substantial medical authority supports" the doctor's claim that banning this procedure "could endanger women's health."

Nonetheless, Congress passed the Partial-Birth Abortion Ban Act in 2003 and made it a federal crime to perform such abortions, disagreeing with the doctors who supported the use of this surgical procedure.

Evidence questioned

The legislators concluded that "there is no credible medical evidence that partial-birth abortions are safe or safer than other abortion procedures" and that they are "never medically indicated to preserve the health of the mother."

When Carhart sued again, this time challenging the new federal law, he won this year in the U.S. District Court in Omaha, Neb., and the 8th U.S. Circuit Court of Appeals in St. Louis. The judges blocked the law from taking effect and said again that the medical testimony indicated that the procedure was sometimes needed to protect a woman's health.

In their appeal to the Supreme Court, the administration's lawyers said the lower courts should have deferred to the lawmakers in Washington, not the medical experts who testified in the case.

David G. Savage writes for the Los Angeles Times.

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