Signing of ban doesn't stop late-term abortion dispute

The government vows to "vigorously defend" the law, but a challenge is likely headed to the Supreme Court.

By Tanya Albert, amednews staff. Nov. 24, 2003.

As the ink dried on the newly signed law commonly known as the "Partial-Birth Abortion Ban Act," physicians and women's advocacy groups succeeded in getting three federal courts to issue temporary restraining orders against the ban on intact dilatation and extraction.

The first court decision came in Nebraska less than an hour after President Bush signed the bill, which carries a two-year prison sentence for doctors who perform the procedure.

Cases at a glance
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"The government should stay out of the doctor's office," said New York obstetrician-gynecologist William H. Knorr, MD, who along with three other physicians succeeded in getting a temporary restraining order in the U.S. District Court for the District of Nebraska.

"They came up with the HIPAA laws to protect patient privacy, and on the other hand, they intrude on a woman's right to make a decision and on her physician's right to carry out that decision for her or to refer her to someone who can," Dr. Knorr said.

Ob-gyn LeRoy Carhart, MD, who led the fight against a similar Nebraska ban that the U.S. Supreme Court struck down as unconstitutional in 2000, agreed.

"As an abortion provider, it is my duty to use the safest procedures I have available once a patient decides to terminate her pregnancy. In America, abortion is one of the safest of all surgical procedures performed by doctors," Dr. Carhart said in a statement. He also is a plaintiff in the case filed in the Nebraska federal court. "Like the Nebraska law, this criminal ban will frighten doctors away from offering the medical services that are best for their patients."

The temporary restraining orders do not cover all doctors.

To prevent that, numerous physicians, the National Abortion Federation and Planned Parenthood filed lawsuits against the government after Congress passed the law in October. By filing before the bill was signed into law, they were looking to seek relief quickly from the federal ban on these late-term abortions.

The day after the bill was signed, the U.S. District Court for the Southern District of New York and the U.S. District Court for the Northern District of California also issued temporary restraining orders. While the court actions apply to physicians who provide more than half of these procedures, they still do not cover every physician in the nation.

The temporary restraining orders shielding doctors from the ban apply only to the physicians who sued and those who work with them; physicians who are members of the National Abortion Federation; and physicians who are under the Planned Parenthood Federation of America.

"We are very pleased that the court moved quickly to protect women and their doctors," said Vicki Saporta, president of the National Abortion Federation. "But there are physicians who are not covered by any of these TROs."

Government fights challenges

The Bush administration vowed to fight the court challenges and prove that the law is legal.

After the courts issued temporary restraining orders, the Dept. of Justice said it would use "every resource necessary" to defend the law. At the bill's signing Nov. 5, Bush said the "executive branch will vigorously defend this law against any who would try to overturn it in the courts."

"The facts about partial birth abortion are troubling and tragic, and no lawyers' brief can make them seem otherwise," Bush told the crowd gathered for the signing.

The U.S. Supreme Court struck down the Nebraska law because it did not have an exception for cases where a woman's health was in jeopardy. Congress did not include an exception for that scenario, but lawmakers did find that a health exception is not needed, and the government says that helps ensure the law is constitutional.

"Congress specifically found that partial-birth abortion poses serious risks of its own to the health of a woman undergoing the procedure," the government argued in its brief opposing the temporary restraining orders. "Over the course of eight years, Congress heard substantial testimony from respected medical professionals who provide care to pregnant women suffering from the same serious medical conditions that plaintiffs argue require a partial-birth abortion. These physicians uniformly agreed that a partial-birth abortion is never necessary to advance the health or life of women."

Endocrinologist Curtis E. Harris, MD, a lawyer and a trustee of the Christian Medical & Dental Assns., said he believes that fact will allow the court ultimately to find the law constitutional. "If a procedure is medically unnecessary, it is impossible to place an undue burden on a woman. I do not believe this law is an empty gesture."

With temporary restraining orders in place, physicians and groups challenging the law will next seek permanent injunctions. The U.S. Supreme Court will likely be the final arbiter.

The ban "will ultimately be declared unconstitutional," Saporta said. "It doesn't contain a health exception, and the Supreme Court said that is paramount."

ADDITIONAL INFORMATION:

Cases at a glance

LeRoy Carhart, MD, et al v. John Ashcroft; Planned Parenthood Federation of America Inc., et al v. John Ashcroft; National Abortion Federation, et al v. John Ashcroft.

Venues: U.S. District Court for the District of Nebraska; U.S. District Court for the Northern District of California; U.S. District Court for the Southern District of New York.

At issue: Whether the newly signed "Partial-Birth Abortion Ban Act" that prohibits physicians from performing intact dilatation and extraction -- and criminally charging them if they provide the procedure -- is constitutional.

Potential impact: Some say the law intrudes on the physician-patient relationship and the right of a woman to make a decision about her body; others say the procedure is not medically necessary and should be outlawed to protect the fetus.