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Federal Judge Says Partial-Birth Abortion Ban Infringes on Right to Choose
Published on Wednesday, June 2, 2004 by the Associated Press
Federal Judge Says Partial-Birth Abortion Ban Infringes on Right to Choose
by David Kravets

SAN FRANCISCO - Ruling that it places an undue burden on a woman's right to choose, a federal judge declared the Partial-Birth Abortion Act unconstitutional in a case that applies to clinics and doctors that perform about half of abortions nationwide.

The ruling Tuesday by U.S. District Judge Phyllis Hamilton came in one of three lawsuits challenging the federal law, which bans certain kinds of abortions.

Hamilton's ruling applies to the nation's approximately 900 Planned Parenthood Federation of America clinics and their doctors, who perform about half the 1.3 million abortions done each year in the United States. The federation brought the lawsuit on their behalf.

The other two cases, in New York and Nebraska, were expected to end within weeks.

In a hearing Wednesday before the scheduled start of closing arguments in the Nebraska case, a lawyer for abortion providers told a judge that Congress acted with purely political motives when it passed the law.

"Their job is not to be objective. Their job is to represent majority views," said Priscilla Smith, a lawyer for the Center for Reproductive Rights.

Last year, President Bush signed legislation banning a procedure known to doctors as intact dilation and extraction, but called "partial-birth abortion" by abortion foes. During the procedure, usually in the second trimester, the living fetus is partially removed from the womb, and its skull is punctured or crushed.

Justice Department attorneys argued the procedure is inhumane, causes pain to the fetus and is never medically necessary. A government lawyer told the judge that it "blurs the line of abortion and infanticide."

Abortion-rights proponents argued, however, that a woman's health during an abortion is more important than how the pregnancy is terminated, and that the banned method is often safer than a conventional abortion, in which the fetus is dismembered in the womb and then removed in pieces.

Hamilton said it is "irrelevant" whether a fetus suffers pain, as abortion foes contend.

"The act poses an undue burden on a woman's right to choose an abortion," the judge wrote.

Planned Parenthood lawyer Beth Parker welcomed the ruling, saying it sends a "strong message" to the Bush administration "that the government should not be intruding on very sensitive and private medical decisions."

Justice Department spokeswoman Monica Goodling said the government "will continue to devote all resources necessary to defend this act of Congress, which President Bush has said 'will end an abhorrent practice and continue to build a culture of life in America.'"

Following the decision, the Bush re-election campaign said: "Today's tragic ruling upholding partial-birth abortion shows why America needs judges who will interpret the law and not legislate from the bench. ... John Kerry's judicial nominees would similarly frustrate the people's will and allow this grotesque procedure to continue."

Kerry spokeswoman Stephanie Cutter said the presumptive Democratic presidential nominee voted to restrict late-term abortions when the measure contained a "clear exception for life or health of women."

"However, George Bush pushed through a different piece of legislation that failed to protect the health of women and that is what the court struck down today," she said. "When John Kerry is president he will appoint judges that are committed to upholding the Constitution, not pursuing an ideological agenda."

Rep. Steve Chabot, R-Ohio, the chief sponsor of the House bill, said the banned abortion method "has no place in a civilized society."

The measure, which President Clinton twice vetoed, was seen by abortion rights activists as a fundamental departure from the Supreme Court's 1973 precedent in Roe v. Wade. Abortion rights advocates said the law was the government's first step toward outlawing abortion.

Violating the law carries a two-year prison term.

Late last year, Hamilton, a Clinton appointee, and federal judges in New York and Lincoln, Neb., blocked the act from being enforced pending the outcome of the court challenges. They began hearing testimony March 29.

The New York case was brought by the National Abortion Federation, which represents nearly half the nation's abortion providers. The Nebraska case was brought by a few abortion doctors.

The outcomes, which may conflict with one another, are likely to be appealed to the Supreme Court.

©2004 Associated Press


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