- The Washington Times - Monday, March 29, 2004

The federal ban on partial-birth abortions is too broad and unconstitutionally threatens women’s access to abortion, an attorney for plaintiffs argued at the beginning of one of three federal court challenges of the new law yesterday.

Attorneys for the government, meanwhile, argued that Congress was right to ban the “inhumane procedure.”

Even before President Bush signed the bill into law in November, it was challenged by pro-choice groups in federal district courts in New York, Nebraska and California. The trials began yesterday and will range from two to four weeks.

“Our evidence will show the court [that] the act unconstitutionally compromises a woman’s right to reproductive choice,” said Stephen Hutt, an outside attorney for the National Abortion Federation, which, along with the American Civil Liberties Union, is challenging the federal law in New York.

“It would, and frankly seems intended to, remove the range of abortion alternatives available to women in the second trimester that have been proven to be safe,” he argued before the court.

Supporters of the law say Congress narrowly wrote the language to apply to one type of abortion, in which a living fetus is almost fully delivered before its skull is pierced and its brain removed.

The law bans this procedure except when needed to save the life of the mother.

“Evidence at trial will illuminate that partial-birth abortion is never medically necessary and is an inhumane procedure that should be banned,” Assistant U.S. Attorney Sean H. Lane told the court.

Opponents say the law is just as unconstitutional as a Nebraska ban on partial-birth abortion that was overturned by the Supreme Court in 2000. The court said Nebraska’s definition of the procedure was too broad and the law didn’t include an exception for the mother’s health.

“The federal ban suffers from the same two fatal flaws,” said Louise Melling, director of the ACLU Reproductive Freedom Project.

In place of a health exception, Congress has included a findings section stating that, based on the extensive congressional-hearing record, a partial-birth abortion is never necessary to preserve health and is outside the standard of medical care.

The remaining court challenges were brought by the Center for Reproductive Rights on behalf of Dr. LeRoy Carhart, the Nebraska abortionist who successfully challenged his state ban, and the Planned Parenthood Federation of America in San Francisco.

The Supreme Court is expected to have the final say, however.

“This is the beginning of a very long legal road that ultimately leads to the Supreme Court,” said Jay Sekulow, chief counsel of the American Center for Law and Justice, a group that supports the ban.

Douglas Johnson, legislative director for the National Right to Life Committee, said he hopes either the votes or composition of the high court changes by the time that happens.

“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 abortions at will,” Mr. Johnson said. “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 decision.”

Mr. Sekulow attended the court challenge in New York yesterday and said, “Round one so far has been a good one for the United States.”

He said the plaintiffs’ attorney told the judge that testimony would be graphic and discomforting at times, and government attorneys seized on this warning, emphasizing that the testimony is disturbing “because the procedure itself is discomforting, raw and blurs the line between live birth and abortion.”

Mr. Sekulow predicted the issue of fetal pain will play a key role in the trials.

An estimated 2,200 to 5,000 partial-birth abortions are performed annually in the United States, most during the fifth or sixth months of pregnancy. Mr. Johnson said that it has been medically established that a fetus at this stage can feel pain and is even more sensitive to pain than a newborn or an older child.

This article is based in part on wire service reports.

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