Federal judges in New York, San Francisco halt abortion ban

By Howard Mintz
Knight Ridder Newspapers

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The judges found that the congressional ban on the procedure — known medically as "intact dilation and extraction" but referred to by opponents as "partial-birth abortion" — is likely to be unconstitutional because it provides no exceptions for a woman's health, thus running afoul of a 2000 Supreme Court ruling that struck down a similar Nebraska statute. President Bush signed the latest ban into law Wednesday.

U.S. District Judge Phyllis Hamilton, who heard Planned Parenthood's legal challenge in San Francisco, went a step further, concluding that the congressional ban also "poses an undue burden on a woman's right to choose" to have an abortion.

Hamilton issued a temporary restraining order blocking enforcement of the ban against any doctor, patient or abortion-related worker affiliated with Planned Parenthood in every state except North Dakota, which does not have a chapter.

Also yesterday, a federal judge in Manhattan blocked enforcement of the law against doctors affiliated with the National Abortion Federation. Foes of the legislation said the two rulings put the law on ice while the cases wind their way through the legal system because they cover a sizable majority of abortion providers.

In a third case, a federal judge in Nebraska on Wednesday blocked enforcement of the law against four doctors who filed their own suit.

The legislation, which imposes the most far-reaching limits on abortion since the Supreme Court's 1973 Roe v. Wade decision, would outlaw certain types of abortion procedures on fetuses that are typically between 20 and 26 weeks.

Supporters of the ban say it applies only to abortions performed late in a pregnancy that are not medically necessary, allowing a gruesome and unwarranted death of the fetus. But critics say the law is a direct and broad assault on abortion rights and fails to protect women who need the procedure for medical reasons.

Backers of the legislation, including Bush, vowed to mount a vigorous defense of the law. Justice Department attorney Anthony Coppolino declined comment, but released a statement from Attorney General John Ashcroft.

The Justice Department "will continue to devote all resources necessary to defend the law prohibiting partial-birth abortions," the statement said.

The focus of all three legal challenges to the abortion ban is the Supreme Court's decision three years ago to strike down a similar law enacted in Nebraska. The court found the Nebraska law was unconstitutional because it did not include an exception for women who needed the procedure to protect their health.

There also is no such exception in the newly crafted federal law. Congress determined that the late-term abortion procedure is "never medically necessary."

While the issue appears destined for the Supreme Court, it is not clear how it will arrive. In all three cases, the judges first must rule on whether to issue a preliminary injunction, which is likely.

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