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9th Circuit appeals court judges hear partial-birth abortion case
Oakland Tribune, Oct 21, 2005 by Josh Richman, STAFF WRITER
SAN FRANCISCO -- The federal partial-birth abortion ban is not overly broad and is backed by a congressional finding of fact to which courts should defer, a government attorney argued Thursday to an appeals court.
But a Planned Parenthood attorney argued the courts need not defer to a congressional finding unsupported by evidence, and when medical professionals disagree about which variant of a procedure is safer, doctors' judgment must take precedence.
Three federal judges have issued rulings striking down as unconstitutional the 2003 law that set the strictest limits on abortion since the 1973 Roe v. Wade decision confirming a woman's right to end a pregnancy.
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Thursday's hearing before a three-judge panel of the 9th U.S. Circuit Court of Appeals was the climax of the government's challenge to the 2004 ruling by U.S. District Judge Phyllis Hamilton of San Francisco.
A Nebraska ruling against the law already has been upheld by the 8th Circuit appeals court, and the U.S. Supreme Court is now mulling whether to review it. The 2nd Circuit appeals court heard arguments on theNew York decision earlier this month but has not yet ruled.
The law in question threatens a two-year prison term for doctors performing what is known to physicians either as a "D&X" -- dilation and extraction -- or as an "intact D&E" -- dilation and evacuation - - in which the doctor brings the fetus out of the womb feet-first as intact as possible, deflating the skull with a needle before removing it completely. In a "disarticulated dilation and extraction," the fetus is taken apart before removal.
The U.S. Supreme Court's 2000 ruling in Stenberg v. Carhart deemed a similar Nebraska law unconstitutional because its broad language imposed an undue burden on a woman's right to make an abortion decision, and it lacked an exception allowing the method when "necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."
Congress in 2003 passed a law largely similar to Nebraska's but with fact-findings that the method "is a gruesome and inhumane procedure that is never medically necessary and should be prohibited." These court challenges have kept that law from taking effect.
Hearing the San Francisco case Thursday were circuit Judges Stephen Reinhardt, Sidney Thomas and William Fletcher -- a President Carter appointee and two President Clinton appointees, respectively, all with socially liberal reputations.
Deputy Assistant Attorney General Gregory Katsas acknowledged there is no case law specifically addressing how much deference courts must give congressional findings in abortion-related matters, but he said the government believes such deference is due.
He contended that despite Hamilton's ruling to the contrary, there is "a clear line of demarcation" between the prohibited procedure and others that are widely used in second-trimester abortions, and so the law does not place an undue burden on women's ability to seek such legal abortions.
But Eve Gartner, senior staff attorney for the Planned Parenthood Federation of America, noted many physicians testifying at the trial in Hamilton's courtroom said they fear most second-trimester abortions they perform could put them in violation of the law because it is hard or impossible to know before an abortion has begun exactly how it will be most safely completed.
And few doctors will want to put their careers on the line by risking a felony conviction on whether a jury will believe they had a specific intent to perform the proscribed surgery, she said, meaning the law has a chilling effect on doctors wanting to perform abortions at all.
As for the congressional finding that the law is never medically necessary, Gartner argued, Congress had no more evidence before it when it made that finding than the Supreme Court had when it decided the Stenberg case. Just saying it does not necessarily make it so, she said, and so the courts need not defer to a finding so unsupported by evidence and in such "blatant disregard" of the Supreme Court's previous ruling.
"This finding is almost ludicrous," she said, claiming consensus against the procedure even while most national medical associations either opposed the ban or took no position on it. "Doctors need to be able to exercise their medical judgment."
A decision is expected within several months.
Planned Parenthood Golden Gate President and CEO Dian Harrison said she felt Thursday's arguments went well, but she feels the ultimate battle on this law will take place before the U.S. Supreme Court.
Planned Parenthood is the nation's single largest abortion provider. Hamilton's order enjoins the government from enforcing the ban against any doctor affiliated with Planned Parenthood, regardless of whether he or she performs an abortion at one of Planned Parenthood's almost 900 clinics. The city and county of San Francisco also were plaintiffs, so its public hospital doctors also aren't restricted by the ban.
