WASHINGTON (BP)–The federal government began defending the Partial-birth Abortion Ban Act in court March 29, and the first day’s proceedings seemed to demonstrate that convincing judges the law does not need an exception to protect the health of the mother will be a major challenge.
Lawyers for the Department of Justice argued before federal judges in New York, San Francisco and Lincoln, Neb., that the gruesome procedure is unnecessary to protect women’s health and results in pain for the unborn child, The New York Times reported. Lawyers for abortion-rights advocates, meanwhile, contended the ban was too broad and unconstitutional because it had no health exception, according to The Times.
The arguments are over a law President Bush signed in November, which prohibits a procedure that normally involves the delivery of an intact baby, feet first, until only the head is left in the birth canal. The doctor pierces the base of the infant’s skull with surgical scissors, then inserts a catheter into the opening and suctions out the brain. The collapse of the skull provides for easier removal of the baby’s head. This typically occurs during the fifth or sixth month of pregnancy.
Opponents quickly challenged the law in three federal courts, resulting in temporary orders against its enforcement.
Richard Kopf, the judge in Nebraska, quickly showed his concern about the lack of a health exception, questioning whether Congress sufficiently researched the issue.
“I have to tell you that I don’t see that Congress spent nearly as much time as you in honestly trying to give me a fair picture of the medical situation,” Kopf told DOJ lawyer Anthony Coppolino, the Omaha World-Herald reported. “The question really is, does Congress really care whether this was safer or needed [for the health of the woman]?”
According to the newspaper, Coppolino told the judge, “Congress heard both sides, and they decided it was not necessary to promote the health interests of the woman.”
Kopf overturned a state ban on partial-birth abortion in 1997, and the Supreme Court agreed with his opinion in 2000. The Nebraska ban was patterned after a federal version that Congress had twice adopted only to have it vetoed by President Clinton.
The high court’s ruling prompted congressional supporters of a ban to draft a new version that sought to remedy the justices’ declaration that the Nebraska law could be interpreted to cover other abortion methods. They also sought to address the justices’ ruling that the ban needed an exception for maternal health reasons. The new law provides more specific language on the procedure it seeks to prohibit. It also declares in its findings the method is neither safe for women nor necessary to preserve their health, based on the testimony of doctors. It includes an exception to protect the mother’s life.
Supporters of the ban also opposed a health exception because it would have established a loophole that would have rendered the law little or no power. In its 1973 decisions legalizing abortion, the Supreme Court defined maternal health so liberally it had the practical effect of permitting abortion for any reason throughout all stages of pregnancy.
Both sides in the three trials are expected to present doctors to argue for and against the necessity of a health exception.
Sean Lane, a DOJ lawyer, told federal Judge Richard Casey in New York he would hear testimony during the trial that “a surgical procedure like partial-birth abortion would be a dangerous procedure for women with some conditions.”
Jay Sekulow, an advocate for the law observing in the New York court, said the American College of Obstetricians and Gynecologists refused to testify, but its written testimony was read in court. Sekulow, chief counsel for the American Center for Law and Justice, said ACOG’s testimony “indicated that partial-birth abortion is not ever the only procedure available and that there are no circumstances where the [partial-birth] procedure is the only available option,” according to his report on the ACLJ’s website.
In the San Francisco trial, Maureen Paul, medical director of Planned Parenthood Golden Gate, said her “overriding concern is that if I continue to practice second-trimester abortions in the way I think is the safest for women … I could be imprisoned,” the San Francisco Chronicle reported.
DOJ lawyer Mark Quinlivan argued doctors such as Paul defended the use of the outlawed procedure based on intuition rather than research to show that partial birth abortions are safe for the mother, according to the Chronicle. She countered, in part, that she relied upon not only her experiences but those of other doctors, the newspaper reported.
Quinlivan asked Paul if she had ever observed any evidence that a 20-week-old, unborn child experienced pain. “I have no idea what that means,” Paul said, according to The Chronicle.
In addition to individual doctors who perform abortions, the National Abortion Federation is challenging the law in the New York court, the Center for Reproductive Rights in Nebraska and the Planned Parenthood Federation of America in San Francisco.
The trials are expected to last from two to four weeks.
While supporters of the law have not been encouraged by the pretrial actions of Kopf and Phyllis Hamilton, the judge in San Francisco, the rulings of Casey have provided hope.
Casey ordered New York-Presbyterian Hospital to turn over abortion records requested by DOJ. A federal appeals court, however, temporarily blocked that order the same day the trials began, The Times reported. DOJ sought the records because two of the hospital’s doctors are part of the suit. The department has argued the records are needed to determine if, as the physicians contend, the abortions are medically necessary.
Casey also ruled that a physician whose research has shown an unborn child can feel pain at 20 weeks of gestation will be able to testify as a government witness.
Hamilton, meanwhile, blocked DOJ’s effort to gain records from Planned Parenthood Federation and some of its affiliates.
“Partly born, premature infants will continue to die at the point of seven-inch scissors, while the abortion industry pursues these legal challenges,” Douglas Johnson of the National Right to Life Committee said on the day the trials opened. “We believe that this law will ultimately be reviewed by the Supreme Court, where five justices in 2000 said Roe v. Wade guarantees the right to perform partial-birth abortions at will. We can only hope that by the time this law reaches the Supreme Court, there will be at least a one-vote shift away from that extreme and inhumane position.”
Congress twice adopted partial-birth abortion bans in the 1990s only to have Clinton veto them both times. In both 1996 and 1998, the House achieved the two-thirds majorities necessary to override vetoes, but the Senate fell short.
The Southern Baptist Convention approved resolutions condemning the procedure in both 1996 and 2002.
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