- The Washington Times - Friday, October 31, 2003

The American Civil Liberties Union and pro-choice groups yesterday filed lawsuits to block a federal ban on partial-birth abortions set to be signed into law by President Bush on Wednesday.

“This deceptive and extreme measure sacrifices women’s health in the name of a broad antichoice agenda to demonize abortion,” said Louise Melling, director of the ACLU Reproductive Freedom Project.

The groups are hoping to get an injunction against the ban, preventing it from taking effect. They say the legislation is just as unconstitutional as a Nebraska ban overturned by the Supreme Court in 2000 because the court said it defined the procedure too broadly and failed to allow the procedure when it was deemed necessary to preserve the health of the mother.

“The ban before us today suffers from the same fatal constitutional flaws,” said Nancy Northup, president of the Center for Reproductive Rights, which filed its lawsuit in U.S. District Court in Nebraska on behalf of Dr. LeRoy Carhart, the physician who successfully challenged the Nebraska ban.

White House spokesman Scott McClellan wouldn’t comment directly on the legal action, but said Mr. Bush looks forward to signing the ban.

“This is an abhorrent procedure, and the president has strongly supported banning partial-birth abortion for a long time,” Mr. McClellan said.

The ACLU filed its lawsuit in the U.S. District Court in the Southern District of New York on behalf of the National Abortion Federation and individual doctors. Planned Parenthood Federation of America filed a lawsuit in a San Francisco federal court. All seek to declare the new law unconstitutional and establish an injunction.

The legislation being challenged would ban partial-birth abortions, except when necessary to save the life of the mother. In a partial-birth abortion — also known as dilation and extraction — the baby is delivered partially before its skull is pierced and its brain extracted. A January Gallup poll found 70 percent of Americans favored a ban of the procedure, and both congressional chambers approved the ban with broad bipartisan support.

Supporters of the legislation say it adequately addresses the high court’s concerns.

“It will meet the challenge,” said Jay Sekulow, chief counsel of the American Center for Law and Justice, a public interest law firm specializing in constitutional law.

The legislation has a more precise definition of the procedure, in order to address the Supreme Court’s concern that the Nebraska law was vague and could have been interpreted to ban another commonly performed type of abortion, where the fetus is dismembered and body parts are removed.

Mr. Sekulow, whose firm will assist the Justice Department in fighting the lawsuits, said the bill is “very, very specific” in its definition, so it will only ban partial-birth abortion.

“Our contention is it will reach more than one procedure,” said ACLU spokeswoman Lorraine Kenny.

The Supreme Court also found the Nebraska ban unconstitutional because it failed to make exceptions in cases where the procedure was deemed necessary to preserve the health of the mother.

The federal legislation doesn’t include such a health exception, but instead includes a lengthy “findings” section concluding that, based on the extensive congressional hearing record on the topic, a partial-birth abortion is never necessary to preserve the health of a woman, poses serious risks to a woman’s health and lies outside the standard of medical care.

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