- The Washington Times - Sunday, March 28, 2004

SAN FRANCISCO (AP) - A historic legal battle over abortion begins in courtrooms coast to coast tomorrow as three federal judges take up requests to derail the first substantial congressional limitation on abortion since the Supreme Court’s landmark Roe v. Wade decision.

The simultaneous litigation centers on legislation President Bush signed last year banning a type of late-term abortion: what lawmakers defined as “partial-birth” abortion and what doctors call “intact dilation and extraction.”

The three trials will be filled with impassioned arguments on whether the law violates constitutional rights, as well as graphic, highly technical and conflicting testimony from medical experts.

“This case is going to be made or lost on the experts,” said U.S. District Judge Phyllis Hamilton, who is presiding over the San Francisco litigation.

The National Abortion Federation, Planned Parenthood Federation of America and a handful of doctors sued in San Francisco, New York and Lincoln, Neb., to overturn the law. They say its language could criminalize more common types of abortion and could be a step toward abolishing abortion in the United States.

Courts and doctors have construed the 1973 Roe v. Wade decision to mean abortions can be legally performed until the “point of viability,” when a healthy fetus can survive outside the womb. That milestone is usually reached 24 weeks to 28 weeks after conception.

In the outlawed procedure, generally performed before that point in the second trimester and occasionally in the third, a fetus is partially delivered before being killed, usually by puncturing its skull.

The number of the procedures performed annually in the United States is estimated at 2,200 to 5,000, out of 1.3 million total abortions.

The Partial-Birth Abortion Act carries a maximum two-year prison term for doctors convicted of performing the procedure, but it has been put on hold pending the outcome of the litigation, which appears likely to reach the Supreme Court.

The U.S. Justice Department, arguing Congress’ case in all three courtrooms, will address the tricky physiological question of when a fetus can begin to feel pain. The law says that the procedure should be outlawed because of “its disturbing similarity to the killing of a newborn infant” and its “disregard for infant human life.”

Justice Department attorney Mark Quinlivan wrote in court briefs that the act “is a clear reflection of Congress’ well-informed judgment that the public interest is best served by prohibiting partial-birth abortions.”

The government’s efforts to prove that the banned procedure is never necessary sparked a separate controversy over medical privacy. To support its argument, the government sought records from abortion providers — and won only a partial victory.

U.S. District Judge Richard Casey, hearing the case in Manhattan, ruled that New York-Presbyterian Hospital must comply. Judge Hamilton of San Francisco was among other judges who ruled that the medical records must remain private.

Though Planned Parenthood and other doctors and groups involved in the suit called the request an invasion of privacy, the government demanded the records — absent patients’ names — in hopes of answering the central claim by the bill’s opponents that the procedure is sometimes medically necessary.

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