Ban on Late Abortion Sparks Legal Challenges

Abortion rights supporters cheered when Dr. LeRoy Carhart won a Supreme Court ruling three years ago striking down Nebraska's ban on partial-birth abortions (search).

Now Carhart has plans to be in court again soon, challenging a similar federal ban that is expected to clear Congress as early as Tuesday and win President Bush's signature within days.

"We're back doing the same thing we did before," Carhart, a general surgeon in Bellevue, Neb., said Monday in an interview. "What we're trying to say is this is not a ban on late term abortions and it's not a ban on one procedure."

The law's supporters dispute that. Douglas Johnson of the National Right to Life Committee (search) said the litigation will "pose the question, `Does the Constitution really guarantee a right to deliver a premature infant within inches of complete birth and then kill her?"'

Passage of the legislation will end a long congressional battle that began in 1995 when Republicans gained control of both the House and Senate and used the debate as a way to place Democratic abortion rights lawmakers on the defensive. Former President Clinton vetoed two measures, arguing they were unconstitutional, and a third attempt to enact legislation was thwarted when Democrats gained control of the Senate midway through 2001.

Yet the triumph of abortion foes in Congress will also trigger a new phase in the larger war.

The Center for Reproductive Rights (search), the ACLU and Planned Parenthood (searchare all poised to file suits challenging the ban in scattered locations, possibly even before the president has time to sign the legislation.

A fourth group, NARAL Pro-Choice America (search), intends to go after the president politically with television commercials in Iowa and New Hampshire, the first-in-the-nation caucus and primary states of the 2004 presidential campaign.

In the legal battle ahead, critics of the law express confidence, while Johnson and other supporters hope for a change in thinking on the high court -- possibly even a retirement -- before the case gets there.

Legally, "this is a slam dunk," said Priscilla Smith, an attorney with the Center for Reproductive Rights (search), which is representing Carhart and intends to seek an order from a federal judge in Nebraska preventing the government from enforcing the law. Other lawsuits will be filed in California and New York.

Smith said that in drafting the legislation, supporters failed to meet the conditions the Supreme Court set in striking down the Nebraska law in 2000.

The legislation creates an "undue burden" on a woman's right to an abortion, she said, because it would ban a variety of procedures, including those commonly used, rather than only one.

"It is a ban on the method used in over 90 percent of abortions after 12 weeks, well before fetal viability," added Talcott Camp, an attorney with the ACLU, which will challenge the law on behalf of the National Abortion Federation (search).

Additionally, according to both women, the legislation fails to provide an exception from the ban for cases where a woman's health requires it -- a condition the Supreme Court imposed in a 1992 abortion ruling.

Hayley Rumback, a spokeswoman for Planned Parenthood, said lawyers may employ the unusual tactic of going to court after Congress passes legislation but before Bush signs it. The law will take effect at midnight on the day Bush signs it, giving lawyers little time to attack it before doctors are put in legal jeopardy, abortion rights supporters say.

On the other side of the argument, Johnson said Congress rewrote its law to take the court's objections to the Nebraska statute into account. "I have yet to hear anybody opposed to the bill explain" how the legislation in Congress could apply more broadly than intended, he said.

The bill prohibits doctors from committing an "overt act" designed to kill a partially delivered fetus. Partial birth is described as a case in which the entire fetal head is outside the body of the mother, or, in the event of a breech delivery, if "any part of the fetal trunk past the navel is outside the body of the mother."

As for the court's requirement for a health exception, Johnson noted that the legislation includes lengthy formal findings that "partial-birth abortion is never medically indicated to preserve the health of the mother." He said courts have in the past "given considerable deference" to independent findings made by Congress.

Referring to the ruling on the Nebraska law, Johnson said, "It was a close call, 5-4, and we hope that by the time this new federal bill gets up to the Supreme Court there will be at least a one-vote shift away from the extreme position." He cited three possibilities, including a justice being persuaded to change; a justice concluding on his or her own that the earlier decision was an error, or "a change in personnel."