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Appeals court upholds Ohio "partial-birth abortion" law

The Cincinnati doctor who brought suit has appealed the ruling. He charges that the statute's health exception is unconstitutional.

By Tanya Albert, amednews staff. Jan. 19, 2004.

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A panel of federal appeals judges has ruled that Ohio lawmakers found the right language to legally ban dilatation and extraction, a procedure that has become commonly known as "partial-birth abortion."

The 2-1 decision in December 2003 from the 6th U.S. Circuit Court of Appeals in Cincinnati states that Ohio's law meets requirements the U.S. Supreme Court outlined in two earlier cases. The high court requires that such laws include an exception to protect the mother's health and that they not place an undue burden on a woman's right to end her pregnancy.

Anti-abortion activists were pleased that the court panel called Ohio's statute a commonsense law. It identifies three abortion procedures that remain legal. "The actual law specifically excludes the majority of abortions," said Denise Mackura, executive director of Ohio Right to Life. "This is not an abortion ban, it is just a procedure ban."

But government involvement in determining what medical procedure a doctor may or may not choose to use is troubling to Cincinnati gynecologist Martin Haskell, MD, who brought the lawsuit challenging Ohio's law.

The health exception is inadequate, and the law imposes an undue burden by essentially criminalizing dilation and extraction even when the treating physician believes it may be the best option for the woman, he stated in his lawsuit.

"This totally disregards the profession of the physician and tries to micromanage medicine," said Alphonse A. Gerhardstein, the attorney representing Dr. Haskell. "What a physician is looking for is the safest procedure, and you can't do that under this bill. This is about options in abortion."