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Justices Shun Late-Term Abortion Ban Court Lets Stand Decision Striking Down Ohio Law

Confronted with its first opportunity to take up the controversial issue of late-term abortions on Monday, the Supreme Court chose instead to sidestep the subject, prompting an angry dissent from three conservative justices.

The action leaves states without guidance as they try to outlaw certain medical procedures, including what critics call “partial-birth abortions.”

Abortion rights groups immediately hailed the high court action in an Ohio case as a victory and warned that it should discourage states from trying to restrict a woman’s right to end a pregnancy. But the court’s order Monday sets no national precedent, and its failure to clarify standards for abortion regulation likely means that the politicking in the nation’s statehouses and in Congress will not ebb.

By declining to take the case, the high court ensured that Ohio cannot enforce its 1995 ban on almost all late-term abortions and on a procedure sometimes considered a “partial-birth” abortion. The justices’ action leaves in place a lower court ruling that struck down the ban as unconstitutional.

With more than 20 states outlawing “partial-birth” abortions and a ban just signed into law by Idaho Gov. Phil Batt, lawmakers had hoped the court would provide some direction on whether such laws are permissible.

Lower federal and state courts that have heard constitutional challenges to “partial-birth” abortion bans have blocked them from being enforced. Meanwhile, Congress is continuing to push its proposed ban, which has been twice vetoed by President Clinton.

In a dissenting statement, Justice Clarence Thomas said Monday’s action “is likely to create needless uncertainty” among the majority of states that restrict late-term abortions in some way. … Joined by Chief Justice William Rehnquist and Justice Antonin Scalia, Thomas admonished the majority for bypassing a chance to rule on a matter “of significant public concern.”

Abortion rights, which the Supreme Court legalized in 1973 and reaffirmed in 1992, remain one of the most fractious political topics. And the “partial-birth” abortion debate is one of its newest fronts, with some anti-abortion groups trying to turn political campaigns into referenda on the issue.

The six justices in the majority Monday wrote nothing to explain their order letting stand the ruling by the 6th U.S. Circuit Court of Appeals. That court found that the Ohio law is unconstitutional in part because of its vague definition of the procedure being banned, called “dilation and extraction.” The court also struck down a provision of the law banning most abortions when the fetus is considered “viable” - or able to live outside the mother’s womb. That provision was found impermissible because it did not grant an exception for women who argue that forcing them to have a baby they don’t want would harm their mental health.

Alphonse Gerhardstein, lead counsel for a group of Ohio abortion providers who challenged the law, called the court’s action Monday “a decisive victory for doctors and women’s reproductive freedom … (and) a clear message to lawmakers that they must put the Constitution over politics.”

But Douglas Johnson, legislative director for the National Right to Life Committee, asserted that the impact of the high court’s action is limited because Ohio’s law differs from federal legislation.

While the legislation was aimed at eliminating a method of “partialbirth” abortions, the 6th Circuit said its vague definition of the procedure encompassed “the most common second trimester procedure” used to end a pregnancy before the fetus would be considered “viable.”

Referring to Supreme Court opinions forbidding interference with a women’s decision to end a pregnancy before the fetus is viable, the 6th Circuit said the Ohio ban places “an undue burden,” or “substantial obstacle” in the path of women seeking access to abortions.

The appeals court noted that the pending federal legislation against “partial-birth” abortions does not appear to involve commonly used methods to remove a fetus and specifically expressed no opinion on the constitutionality of the congressional proposal.

The Ohio law was immediately challenged when it passed three years ago and has never been enforced.


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