By Cynthia L. Cooper
Tuesday, October 14, 2003
Reproductive-rights lawyers are ready to challenge the constitutionality of the so-called Partial-Birth Abortion Ban as soon as it becomes law. They will base much of their case on a 2000 decision by the Supreme Court against a similar ban.
(WOMENSENEWS)--The hour the first national prohibition of safe abortion services is signed into law, reproductive-rights activists will begin the court fight against it.
"When President Bush is signing it, I'll be in court seeking an immediate injunction," said Priscilla Smith, director of domestic litigation for the Center for Reproductive Rights, a New York advocacy group supporting abortion rights.
The legislation, known as the Partial-BirthAbortion Ban Act of 2003, subjects doctors to arrest for performing standard abortion procedures. The Senate is expected to soon reconcile its version of the ban with the version passed by the House in early October. Then, it will go to President George W. Bush, who supports the legislation, for signing. The prohibition is set to begin at 12:01 a.m. on the night Bush signs it. It will be the first time the federal government attempts to regulate how doctors perform medical procedures.
In arguing that the law is unconstitutional, Smith will base her argument on the United States Supreme Court, which three years ago threw out a nearly identical state criminal law from Nebraska in the case of Stenberg vs. Carhart.
Dr. LeRoy Carhart of Nebraska, who successfully petitioned the Supreme Court to stop his state's ban, will go to court again.
"I think it's ridiculous that we have to go back and fight a battle that we already won," said Carhart. "It's a slap in the face of the court." Carhart will be represented by the Center for Reproductive Rights.
The law subjects surgeons to felony arrest if they perform several types of surgery widely viewed as the safest for women terminating a pregnancy after the 12th week. The law criminalizes the surgeries even when the woman's health could be endangered by her pregnancy or the fetus has no chance of living.
The Reproductive Freedom Project of the American Civil Liberties Union and the litigation unit of Planned Parenthood Federation of America, two other pro-choice litigation groups representing doctors, clinics, Planned Parenthood affiliates, patients and a national pro-choice association will also go to court to stop the law from taking effect.
"The bill clearly suffers from the same flaws as the Nebraska statute that went to the Supreme Court. It will not become law," said Vicky Saporta, executive director of one of the potential litigants, the National Abortion Federation, a Washington, D.C., nonprofit organization that represents 400 abortion facilities.
A majority of five justices of the U.S. Supreme Court rejected the Nebraska law in a June 28, 2000 decision, saying that a woman's health is paramount and the Nebraska law unconstitutionally failed to protect women's health.
Under prior decisions of the Supreme Court--in 1973 (Roe vs. Wade) and 1992 (Planned Parenthood v. Casey)--a woman has a right to choose to terminate her pregnancy before viability without interference from the government. Prior to viability, the government may not place an "undue burden" on a woman's decision or a "substantial obstacle" in her path. The court also said the ban impermissibly interfered with safe abortions for 10 weeks or more before viability, from the twelfth week on.
"The Constitution offers basic protection to the woman's right to choose," the justices said in the decision rejecting the Nebraska "partial-birth abortion" ban.
"The federal law does nothing to change the two glaring objections," said Talcott Camp, deputy director for the Reproductive Freedom Project of the American Civil Liberties Union, located in New York. "It lacks a health exception. And it's a broad ban which bans most abortions in the second trimester." The ACLU will go to court to block the law, at a cost of tens or hundreds of thousands of dollars, said Camp.
The National Right to Life Committee, which initiated and promoted the ban, acknowledges in an anti-choice publication that the law contradicts prior rulings of the U.S. Supreme Court.
"Five Supreme Court justices said that Roe vs. Wade guarantees an abortionist's right to perform a partial-birth abortion," Douglas Johnson, legislation director for the National Right to Life Committee told LifeNews.com in an article published Sept. 29. "We hope that by the time this ban reaches the Supreme Court, at least five justices will be willing to reject such extremism."
The National Right to Life Committee and other anti-choice organizations are lobbying Bush to appoint anti-choice justices to the Supreme Court in the event that judges such as Justice Sandra Day O'Connor, who voted against the Nebraska ban, retires. The National Right to Life Committee did not respond to Women's eNews' request for further comment.
Over 50 judges across the country, Republican and Democrat, have come to the same conclusion as the Supreme Court and found the bans to be unconstitutional. Twenty-two court challenges were brought against copycat state laws with pro-choice victories in all but one, which was overturned on appeal.
"The other side has had plenty of opportunities to make their case," said Smith. "They tried and they failed. The courts said you can't force women to undergo riskier abortion procedures."
Less than two months ago, the federal district court for the Eastern District of Virginia rejected an attempted abortion ban in Virginia that uses language mirroring the federal ban. Judge Richard Williams said on Aug. 22 that the doctors could even end up in prison for helping women suffering miscarriages. "The constitution will not tolerate such a broad and health-threatening statute," wrote Williams.
Some members of Congress, however, fail to acknowledge the court decisions.
U.S. Representative Christopher Shays, the Republican from Connecticut, describes himself as "pro-choice," but voted with the National Right to Life for the abortion ban. In an e-mailed statement to Women's eNews, Shays said, "I believe late-term abortions are wrong" and that he cannot "justify the use of this particular procedure."
But his office could not explain whether he had read the Supreme Court's ruling, which dispatches with those claims. In contrast to the way supporters of the ban represent the law--as pertaining only to late-term and particular procedures--the court said that the ban is not limited to the "late term" or to a "particular" procedure. The federal law, like the Nebraska law, does not use medical terminology that would allow a doctor to identify a specific procedure that is banned and does not limit the banned procedures to a post-viability time period. Even the name "partial-birth abortion" is a non-medical term that has no medical relevance.
"Those are misnomers, and they are inaccurate. And the Supreme Court said it's not true," said Camp, referring to the ways advocates of the ban have portrayed it.
Senator Arlen Specter, a lawyer who sits on the Judiciary Committee and campaigns as a pro-choice moderate, voted for the ban. "This is a procedure where the child is in the delivery channel and I think that is just too late for an abortion," the Republican from Pennsylvania said in a statement sent to Women's eNews. His office could did not respond to requests for clarification.
Yet, if Specter's analysis were true, all safe abortions would be banned, said Smith, since all involve removal of the fetus through the vagina, which is the sole "channel" to the uterus. "There is a woman on the operating table," she said. The failure to acknowledge that, she said, "leads to the use of terms like the 'delivery channel' to refer to a woman's vagina, and total omission of reference to her labia, her cervix, her uterus. The ignorance of many legislators about women's anatomy is stunning."
The real motivation of the ban is far removed court decisions, a doctor's services or a woman's needs, said Camp. "It's a political maneuver that has nothing to do with good law or good medical care," she said.
Cynthia L. Cooper is a journalist in New York City with a background as a lawyer.
Women's eNews--"Confusion Surrounds 'Partial Birth Abortion'":
Center for Reproductive Rights--
"So-called 'Partial-Birth Abortion' Bans":
American Civil Liberties Union--Reproductive Rights:http://www.aclu.org/ReproductiveRights/ReproductiveRightsMain.cfm