- The Washington Times - Wednesday, June 2, 2004

A federal judge in California ruled yesterday that the partial-birth-abortion ban, signed into law by President Bush last year, is unconstitutional and can’t be enforced against Planned Parenthood doctors.

“Today’s ruling is a landmark victory for medical privacy rights and women’s health,” said Gloria Feldt, president of Planned Parenthood Federation of America, the group that challenged the government’s ban in California’s Northern District Court.

“This ruling gives a whole new meaning to the notion that justice is blind,” countered Wendy Wright, senior policy director of Concerned Women for America, noting that the American Medical Association has said the procedure is never medically necessary.

The law also is being challenged in New York and Nebraska, but those courts haven’t ruled. Both sides expect the issue will end up before the Supreme Court.

Yesterday’s ruling by U.S. District Judge Phyllis Hamilton — appointed by President Clinton in 2000 — means that the administration cannot enforce the ban against Planned Parenthood clinics nationwide or against any doctor to whom Planned Parenthood makes referrals, said Roger Evans, one of the Planned Parenthood lawyers who argued the case. Planned Parenthood has about 900 clinics nationwide.

San Francisco also joined Planned Parenthood in the suit, so the city’s medical facilities also can’t be banned from performing the procedure — also known as intact dilation and extraction — in which an unborn child is partially delivered before its skull is punctured and it is killed.

The ban would continue to be enforced for other abortion doctors, including independent abortion facilities in San Francisco or elsewhere that aren’t associated with Planned Parenthood and do not take referrals from the group.

It was not clear whether the government would appeal the case. A White House spokesman said that the president “strongly disagrees” with the ruling and that “the administration will take every step necessary to defend this law in the courts.”

Tony Perkins, president of the Family Research Council, denounced the ruling as “yet another example of a judge with a supersized view of her authority.”

He said Judge Hamilton totally ignored Congress, which crafted the law based on medical evidence, and approved it overwhelmingly.

Rep. Steve Chabot, the Ohio Republican who sponsored the ban in the House, agreed that yesterday’s ruling was “a seriously flawed decision by a lone federal judge in San Francisco.” He said that the law “is sound, constitutional legislation” and that the Supreme Court will be the ultimate arbiter.

He noted that the ruling came from within “the Ninth Circuit, the most frequently overturned federal circuit in the nation.”

The ruling will make abortion a political issue in an election year.

Bush-Cheney campaign chairman Marc Racicot said the “tragic ruling … shows why America needs judges who will interpret the law and not legislate from the bench.”

He said Democratic presidential candidate Sen. John Kerry’s “nominees would simply frustrate the people’s will and allow this grotesque procedure to continue.”

Kerry spokeswoman Stephanie Cutter said that Mr. Kerry, a Massachusetts Democrat who voted against the ban, “voted to restrict late-term abortions but only where there was a clear exception for life or health of women,” while Mr. Bush pushed a law that was struck down yesterday because it “failed to protect the health of women.” She said as president, Mr. Kerry will appoint judges “committed to upholding the Constitution not pursuing an ideological agenda.”

Elizabeth Cavendish, interim president of NARAL ProChoice America, warned that “if Bush gets a chance to fill multiple seats on the Supreme Court, not only this decision, but the fundamental right to choose itself will be at risk.”

Judge Hamilton concluded that the ban is unconstitutional because it unduly burdens a woman’s right to choose a second-trimester abortion, is overly vague and doesn’t contain an exception to allow partial-birth abortion when the doctor determines it’s needed to preserve the woman’s health. She said the ban’s wording could be interpreted to apply throughout any trimester of pregnancy and could ban another, more common type of abortion in which the fetus is dismembered in utero and removed vaginally.

The U.S. Supreme Court overturned a Nebraska partial-birth-abortion ban in 2000 on the grounds that it was overly vague and didn’t contain a health exception.

The federal ban was passed by Congress last year. Doctors who violate it would face fines and up to two years in prison.

Congressional Republicans say they addressed the Supreme Court’s concerns by tightening the wording of their ban to ensure it wasn’t vague. They didn’t add a health exception, but rather added a findings section stating that, based on lengthy congressional hearing testimony, partial-birth abortions are never medically necessary, pose significant health risks to the woman and are outside the standard of medical care.

These points were stressed in the California case by Justice Department lawyers, who also argued that the procedure causes pain to the unborn child. Pro-choice advocates argued that a woman’s health during an abortion is more important than how the unborn child is terminated and that the banned procedure is often a safer solution than other types of abortions.

Attorney General John Ashcroft tried to obtain medical records from Planned Parenthood clients earlier this year in connection with the case, but Judge Hamilton ruled in March that the government didn’t have the right to view the confidential records.

• This article is based in part on wire service reports.

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