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Judge rejects limits on abortion
A federal judge declared unconstitutional Tuesday the federal government's first-ever attempt to outlaw a specific abortion procedure, saying the law would endanger women's health and violate their right of access to abortion.
Judge rejects limits on abortion
Law criminalizing 'partial-birth' procedure called unconstitutional, threat to women
Bob Egelko, Chronicle Staff Writer
Wednesday, June 2, 2004
--------------------------------------------------------------------------------
A federal judge declared unconstitutional Tuesday the federal government's first-ever attempt to outlaw a specific abortion procedure, saying the law would endanger women's health and violate their right of access to abortion.
The ban on certain mid-term abortions, if enforced, "may force pregnant women to undergo a procedure that is less safe'' and would interfere with doctors' medical judgment, said U.S. District Judge Phyllis Hamilton of San Francisco in the nation's first ruling on the constitutionality of the Partial-Birth Abortion Ban Act.
The law, the first federal statute to criminalize any type of abortion, was signed by President Bush in November but was quickly blocked by Hamilton and two other federal judges. It would prohibit a doctor from partly removing an intact fetus from a woman's body before aborting it. Violations are punishable by up to two years in prison.
Hamilton's ruling applies to doctors in about 900 Planned Parenthood clinics nationwide, and to the city of San Francisco, which joined the suit on behalf of its public health facilities. Closing arguments are scheduled today in Lincoln, Neb., where four individual doctors are challenging the law, and on June 22 in New York City in a suit by the National Abortion Federation, whose members perform about half the nation's abortions.
The judges could reach varying conclusions on the law, but there is little likelihood of enforcement anywhere while the case is on appeal for a year or more. It could reach the U.S. Supreme Court, which ruled a similar Nebraska law unconstitutional in 2000.
Abortion-rights groups, which have warned that the law was a first step toward abolishing legal abortion, praised Hamilton's ruling. It "should serve as another warning to the Ashcroft Department of Justice: The American people will not stand for intrusion into private medical decision-making,'' said Dian Harrison, president of Planned Parenthood Golden Gate.
But abortion foes had a different take. Douglas Johnson of the National Right to Life Committee accused Hamilton of acting out of a "deep personal hostility to the law'' and said hers would not be the last word.
"It is the U.S. Supreme Court that will ultimately decide whether our elected representatives can ban the practice of mostly delivering a living premature infant and then puncturing her skull,'' Johnson said.
The Justice Department did not spell out its plans for appeal, but said it would "continue to devote all resources necessary to defend this act of Congress, which President Bush has said 'will end an abhorrent practice and continue to build a culture of life in America.' ''
Until now, the legal battle over abortion has been waged almost entirely in the states, where laws restricting public funds and facilities, prescribing pre-abortion warnings and waiting periods, and requiring parental notification or consent have been measured against the Supreme Court's constitutional standard prohibiting any "undue burden'' on access to abortion.
The current case shifts the focus to the federal level and tests the power of an anti-abortion president and Congress to redefine the balance between woman and fetus.
Supporters said the new law would ban only a narrowly defined, rarely performed procedure that is dangerous, causes pain to the fetus and is never necessary for a woman's health. Congress declared each of those assertions to be an established fact in a series of findings designed to counteract the Supreme Court's 2000 ruling, which said one of the Nebraska law's constitutional defects was its failure to allow abortions needed to protect the pregnant woman's health.
Hamilton, who heard conflicting medical testimony during a three-week trial this spring, issued a scathing 120-page ruling that dismissed the congressional findings as the product of biased hearings that relied on a handful of anti-abortion doctors.
Contrary to Congress' conclusion that the banned abortions were never necessary for a woman's health, Hamilton said the law "may force pregnant women to undergo a procedure that is less safe under their particular circumstances.''
She said testimony from medical experts offered by Planned Parenthood showed that the law was much broader than its supporters claimed and could forbid the safest abortion procedures during the second trimester, when more than 10 percent of abortions are performed. The government's medical witnesses, who testified to the contrary, had never performed or even observed abortions that the law would ban, Hamilton said.
The most common second-trimester method is called dilation and evacuation, or D&E, and involves dilating the cervix to dismember and remove the non-viable fetus. Unforeseen events during any D&E, like the amount of dilation or the position of the fetus, can lead a doctor to conclude that the safest course is to remove the fetus intact up to the head and then puncture the skull, Hamilton said; that would be a crime under the new law.
The law "creates a risk of criminal liability during virtually all abortions performed after the first trimester, and has the effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus,'' the judge said. She also said the law was so vaguely worded that doctors would not know when they were risking prosecution.
The medical director of San Francisco General Hospital's abortion clinic, Dr. Eleanor Drey, said doctors "would have worried that by doing their job they might have been put in jail'' if the law were enforced. The result, she said, could be elimination of second-trimester abortions at the only Northern California clinic where poor women can now obtain them.
Other abortion-rights advocates said the ruling reaffirmed their view that medical decisions should be made by women and their doctors, not Congress.
--------------------------------------------------------------------------------
Judge
Phyllis Hamilton
A brief biography of the federal judge in the abortion case:
Age: 51.
Appointed by: President Bill Clinton, 2000.
Education: Stanford University, B.A., 1974; Santa Clara University Law School, J.D., 1976.
Experience: Deputy state public defender, 1976-80.
Administrative judge, U.S. Merit Systems Protection Board, 1980-85.
Alameda County Municipal Court commissioner, 1985-91.
U.S. magistrate, 1991-2000.
Page A - 1
Law criminalizing 'partial-birth' procedure called unconstitutional, threat to women
Bob Egelko, Chronicle Staff Writer
Wednesday, June 2, 2004
--------------------------------------------------------------------------------
A federal judge declared unconstitutional Tuesday the federal government's first-ever attempt to outlaw a specific abortion procedure, saying the law would endanger women's health and violate their right of access to abortion.
The ban on certain mid-term abortions, if enforced, "may force pregnant women to undergo a procedure that is less safe'' and would interfere with doctors' medical judgment, said U.S. District Judge Phyllis Hamilton of San Francisco in the nation's first ruling on the constitutionality of the Partial-Birth Abortion Ban Act.
The law, the first federal statute to criminalize any type of abortion, was signed by President Bush in November but was quickly blocked by Hamilton and two other federal judges. It would prohibit a doctor from partly removing an intact fetus from a woman's body before aborting it. Violations are punishable by up to two years in prison.
Hamilton's ruling applies to doctors in about 900 Planned Parenthood clinics nationwide, and to the city of San Francisco, which joined the suit on behalf of its public health facilities. Closing arguments are scheduled today in Lincoln, Neb., where four individual doctors are challenging the law, and on June 22 in New York City in a suit by the National Abortion Federation, whose members perform about half the nation's abortions.
The judges could reach varying conclusions on the law, but there is little likelihood of enforcement anywhere while the case is on appeal for a year or more. It could reach the U.S. Supreme Court, which ruled a similar Nebraska law unconstitutional in 2000.
Abortion-rights groups, which have warned that the law was a first step toward abolishing legal abortion, praised Hamilton's ruling. It "should serve as another warning to the Ashcroft Department of Justice: The American people will not stand for intrusion into private medical decision-making,'' said Dian Harrison, president of Planned Parenthood Golden Gate.
But abortion foes had a different take. Douglas Johnson of the National Right to Life Committee accused Hamilton of acting out of a "deep personal hostility to the law'' and said hers would not be the last word.
"It is the U.S. Supreme Court that will ultimately decide whether our elected representatives can ban the practice of mostly delivering a living premature infant and then puncturing her skull,'' Johnson said.
The Justice Department did not spell out its plans for appeal, but said it would "continue to devote all resources necessary to defend this act of Congress, which President Bush has said 'will end an abhorrent practice and continue to build a culture of life in America.' ''
Until now, the legal battle over abortion has been waged almost entirely in the states, where laws restricting public funds and facilities, prescribing pre-abortion warnings and waiting periods, and requiring parental notification or consent have been measured against the Supreme Court's constitutional standard prohibiting any "undue burden'' on access to abortion.
The current case shifts the focus to the federal level and tests the power of an anti-abortion president and Congress to redefine the balance between woman and fetus.
Supporters said the new law would ban only a narrowly defined, rarely performed procedure that is dangerous, causes pain to the fetus and is never necessary for a woman's health. Congress declared each of those assertions to be an established fact in a series of findings designed to counteract the Supreme Court's 2000 ruling, which said one of the Nebraska law's constitutional defects was its failure to allow abortions needed to protect the pregnant woman's health.
Hamilton, who heard conflicting medical testimony during a three-week trial this spring, issued a scathing 120-page ruling that dismissed the congressional findings as the product of biased hearings that relied on a handful of anti-abortion doctors.
Contrary to Congress' conclusion that the banned abortions were never necessary for a woman's health, Hamilton said the law "may force pregnant women to undergo a procedure that is less safe under their particular circumstances.''
She said testimony from medical experts offered by Planned Parenthood showed that the law was much broader than its supporters claimed and could forbid the safest abortion procedures during the second trimester, when more than 10 percent of abortions are performed. The government's medical witnesses, who testified to the contrary, had never performed or even observed abortions that the law would ban, Hamilton said.
The most common second-trimester method is called dilation and evacuation, or D&E, and involves dilating the cervix to dismember and remove the non-viable fetus. Unforeseen events during any D&E, like the amount of dilation or the position of the fetus, can lead a doctor to conclude that the safest course is to remove the fetus intact up to the head and then puncture the skull, Hamilton said; that would be a crime under the new law.
The law "creates a risk of criminal liability during virtually all abortions performed after the first trimester, and has the effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus,'' the judge said. She also said the law was so vaguely worded that doctors would not know when they were risking prosecution.
The medical director of San Francisco General Hospital's abortion clinic, Dr. Eleanor Drey, said doctors "would have worried that by doing their job they might have been put in jail'' if the law were enforced. The result, she said, could be elimination of second-trimester abortions at the only Northern California clinic where poor women can now obtain them.
Other abortion-rights advocates said the ruling reaffirmed their view that medical decisions should be made by women and their doctors, not Congress.
--------------------------------------------------------------------------------
Judge
Phyllis Hamilton
A brief biography of the federal judge in the abortion case:
Age: 51.
Appointed by: President Bill Clinton, 2000.
Education: Stanford University, B.A., 1974; Santa Clara University Law School, J.D., 1976.
Experience: Deputy state public defender, 1976-80.
Administrative judge, U.S. Merit Systems Protection Board, 1980-85.
Alameda County Municipal Court commissioner, 1985-91.
U.S. magistrate, 1991-2000.
Page A - 1
For more information:
http://www.sfgate.com/cgi-bin/article.cgi?...
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