Associated Press, September 9, 2004
3d US judge rejects curb on
By Kevin O'Hanlon
LINCOLN, Neb. -- A third federal judge has ruled
the Partial-Birth Abortion Ban Act unconstitutional,
adding judicial weight that some specialists
say could keep the issue from reaching the
US Supreme Court.
US District Judge Richard Kopf of Lincoln ruled
against the measure yesterday, saying Congress
ignored the most experienced doctors when it
determined that the banned procedure would
never be necessary to protect the health of
the mother -- a finding he called unreasonable.
His ruling echoed decisions by federal judges
in New York and San Francisco. The abortion
ban was signed last year by President Bush
but was not enforced because the three judges
agreed to hear constitutional challenges in
simultaneous nonjury trials.
The ban, which President Clinton twice had vetoed,
was seen by abortion rights activists as a
fundamental departure from the Supreme Court's
1973 precedent in Roe v. Wade. But the Bush
administration has argued that the procedure,
medically known as intact dilation and extraction,
but called partial-birth abortion by opponents,
is cruel and unnecessary and causes pain to
If each judge is upheld by federal appeals courts,
the high court might not take up the issue,
said Pricilla Smith, a lawyer with the New
York-based Center for Reproductive Rights.
"If all the appellate courts uphold those
decisions, there is no reason for it to go
to the Supreme Court," Smith said.
Not everyone agreed.
"It's very unusual for the court not to
take a case where an act of Congress has been
struck down," said Jay Sekulow, chief
counsel for the American Center for Law and
Justice, which opposes the ban. "I would
be very surprised if the court took a pass
The Nebraska lawsuit was filed by the Center
for Reproductive Rights on behalf of physicians
including Dr. LeRoy Carhart, who also brought
the challenge that led the high court in 2000
to overturn a similar ban passed by Nebraska
"The Supreme Court already said what the
law is four years ago," Smith said. "The
judges all across the country, from different
political persuasions, applied the law and
uniformly found it unconstitutional."
Louise Melling, director of the American Civil
Liberties Union's Reproductive Freedom Project,
agreed with Smith.
"What you have is a decision of a mere four
years ago striking a similar ban," she
said. "And now you have three courts striking
a ban for the same reason."
Smith said, however, that if there is a change
in the makeup of the high court through presidential
appointments, it might still hear the issue
even if the appeals courts uphold the decisions.
"And that, of course, is what the proponents
of the law have been hoping for all along,"
The Justice Department already has filed an appeal
of the San Francisco ruling and said in a statement
yesterday that it "will continue to defend
the law to protect innocent new life from partial-birth
In his ruling, Kopf said that "according
to responsible medical opinion, there are times
when the banned procedure is medically necessary
to preserve the health of a woman and a respectful
reading of the congressional record proves
"No reasonable and unbiased person could
come to a different conclusion."
During the procedure, generally performed in
the second trimester, a fetus is partially
removed from the womb and its skull is punctured
The law contains an exception when the life of
the mother -- but not her health -- is at risk.
Backers of the ban said a health exception
would open a major loophole, allowing abortions
even when the mental health of the mother is
Kopf agreed with Carhart and his lawyers, who
said the law is vague and could be interpreted
as covering more common, less controversial
procedures, including one known as dilatation
and evacuation, the most common method of second-trimester
A total of 1.3 million abortions are performed
in the United States each year. Almost 90 percent
occur in the first trimester.
An estimated 140,000 dilation and extraction
procedures take place in the United States
annually, compared with an estimated 2,200
to 5,000 intact dilation and extraction procedures.
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