Judge kills partial-birth abortion ban

SAN FRANCISCO – In a ruling with coast-to-coast effect, a federal judge declared the Partial-Birth Abortion Ban Act unconstitutional Tuesday, saying it infringes on a woman’s right to choose.

U.S. District Judge Phyllis Hamilton’s ruling came in one of three lawsuits challenging the legislation President Bush signed last year.

She agreed with abortion rights activists that a woman’s right to choose is paramount, and that it is therefore “irrelevant” whether a fetus suffers pain, as abortion foes contend.

“The act poses an undue burden on a woman’s right to choose an abortion,” the judge wrote.

The challenge was brought by the Planned Parenthood Federation of America, and the ruling applies to the nation’s 900 or so Planned Parenthood clinics and their doctors, who perform about half the 1.3 million abortions done each year in the United States.

Federal judges in New York and Nebraska also heard challenges to the law earlier this year from other abortion-rights forces but have yet to rule.

Planned Parenthood lawyer Beth Parker welcomed the ruling, saying it sends a “strong message” to the Bush administration “that the government should not be intruding on very sensitive and private medical decisions.”

In a statement, the Bush re-election campaign said: “Today’s tragic ruling upholding partial birth abortion shows why America needs judges who will interpret the law and not legislate from the bench. . . . John Kerry’s judicial nominees would similarly frustrate the people’s will and allow this grotesque procedure to continue.”

Justice Department spokeswoman Monica Goodling said the government “will 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.’ ”

The Kerry campaign had no immediate comment.

The law, signed in November, represented the first substantial federal legislation limiting a woman’s right to choose an abortion. Abortion rights activists said it ran counter to three decades of Supreme Court precedent.

It banned a procedure that is known to doctors as intact dilation and extraction, but is called “partial-birth abortion” by abortion foes. During the procedure, the living fetus is partially removed from the womb, and its skull is punctured or crushed.

Justice Department attorneys argued the procedure is inhumane, causes pain to the fetus and is never medically necessary. A government lawyer told the judge that it “blurs the line of abortion and infanticide.”

Abortion proponents argued, however, that a woman’s health during an abortion is more important than how the fetus is terminated, and that the banned method is often safer than a conventional abortion, in which the fetus is dismembered in the womb and then removed in pieces.

In her ruling, the judge said it was “grossly misleading and inaccurate” to suggest the banned procedure verges on infanticide.

Rep. Steve Chabot, R-Ohio, the chief sponsor of the House bill, said the banned abortion method “has no place in a civilized society,” and predicted the Supreme Court would decide the outcome.

“Regardless of this decision from San Francisco, partial-birth abortion remains a horrific practice that snuffs out innocent life seconds before the baby takes its first breath,” Chabot said.

The measure, which President Clinton had twice vetoed, was seen by abortion rights activists as a fundamental departure from the Supreme Court’s 1973 precedent in Roe v. Wade. Abortion advocates said the law was the government’s first step toward outlawing abortion.

Violating the law carries a two-year prison term.

Late last year, Hamilton, a Clinton appointee, and federal judges in New York and Lincoln, Neb., blocked the act from being enforced pending the outcome of the court challenges. They began hearing testimony March 29.

Doctors have construed the Supreme Court’s decision in Roe. v. Wade to mean they can perform abortions usually until the 24th to 28th week after conception, or until the “point of viability,” when a healthy fetus is thought to be able to survive outside the womb. Generally, abortions after the “point of viability” are performed only to preserve the mother’s health.

The Nebraska and New York cases are expected to conclude within weeks. The outcomes, which may conflict with one another, will almost certainly be appealed to the Supreme Court.

The New York case was brought by the National Abortion Federation, which represents nearly half the nation’s abortion providers. The Nebraska case was brought by a few abortion doctors.

The U.S. Supreme Court had overturned a Nebraska partial-birth abortion law because it did not allow the banned procedure even when a doctor believes the method is the best way to preserve the woman’s health.

Congressional sponsors said the ban would outlaw only 2,200 or so abortions a year.

But abortion providers testified the banned method can happen even at times when doctors try to avoid it, such as when they attempt to remove the fetus from the womb in pieces.

They warned that the law could be used to ban almost all second-trimester abortions, which account for about 10 percent of all abortions in the United States.