Skip to comments.Carhart wins temporary victory
Posted on 11/06/2003 6:23:58 PM PST by yhwhsman
Carhart wins temporary victory
BY BUTCH MABIN / Lincoln Journal Star
Citing the health risks a late-term abortion law could pose to mothers, U.S. District Judge Richard G. Kopf on Wednesday temporarily barred the federal government from enforcing the measure against four doctors.
In an order issued shortly after President Bush signed legislation that banned so-called partial-birth abortions, Kopf ruled the measure appeared to suffer the same constitutional flaw -- the absence of a health exception for the mother -- that the U.S. Supreme Court identified in a 1997 Nebraska measure.
"While it is ... true that Congress found that a health exception is not needed, it is, at the very least, problematic whether I should defer to such a conclusion when the Supreme Court has found otherwise," the judge wrote.
The order Wednesday temporarily bars the federal government from enforcing the law against Dr. LeRoy Carhart of Bellevue; Dr. Jill Vibhakar of Iowa; Dr. William Fitzhugh, who practices in Virginia; and Dr. William Knorr, who practices in Georgia, Alabama, South Carolina and New York.
Those four physicians sued the federal government in U.S. District Court in Lincoln last week.
Kopf declined a request from the doctors' attorney, Priscilla Smith of the New York-based Center for Reproductive Rights, to make the restraining order nationwide.
Violation of the law is punishable by up to two years in prison and an unspecified fine.
"Congress and the president ignored the Supreme Court and women's health in enacting this law," Reproductive Rights president Nancy Northrup said after the ruling Wednesday.
"The Nebraska court's order will protect doctors from facing prison for providing their patients with the best medical care."
Kopf presided over a similar 1997 lawsuit brought by Carhart and Reproductive Rights against a Nebraska measure that outlawed what critics call partial-birth abortions.
The judge eventually ruled the law unconstitutional. The U.S. Supreme Court affirmed Kopf in 2000.
Greg Schleppenbach, director of pro-life activities for the Nebraska Catholic Conference, said he was disappointed but not surprised by the ruling.
"But there's a silver lining to all this," he continued. "For the defenders of abortion to have to defend a gruesome procedure like this ... I think is a losing issue to be defending."
Kopf's order came just minutes after Bush signed the Partial Birth Abortion Act of 2003 at a Washington, D.C., ceremony.
Congress approved the legislation in October.
Proponents of the legislation said it sought to outlaw a gruesome, medically unnecessary late-term procedure in which the abortion takes place after either the fetal head, or in the case of a breech, the fetal trunk past the navel, is outside the mother.
Opponents contend the act's wording is so broad and vague that it outlawed one of the safest and most widely used abortion procedures, known as dilation and extraction, or D&E.
They also said the act barred use of a D&E variant, known as "intact" D&E, or D&X, in which a doctor attempts to remove the whole fetal body from the mother before using instruments to collapse and suction out the skull.
Carhart and some medical associations, including the prestigious American College of Obstetricians and Gynecologists, have said D&X poses fewer health risks than standard D&E to women because it does not require dismemberment of the fetus inside mothers.
In addition, Carhart has said doctors cannot know in advance of performing an abortion whether they will need to do a D&E or D&X.
Anyway, said Reproduction Rights attorney Smith during a three-hour hearing in front of Kopf, the act would effectively ban both methods.
"The statute is very clear; it covers all these procedures," she said. "There's nothing in the statute that says the fetus has to be intact."
She urged the judge to impose a nationwide restraining order against the act. Otherwise, she said, doctors across the country might be in jeopardy of criminal prosecution for performing the safest abortions on their patients.
"It's (the restraining order) not necessarily over-broad if its extends to others," she said.
Kopf said he was reluctant to extend the order because that would involve making hypothetical determinations about physicians who are not before him, and because similar lawsuits were being considered by federal courts in New York and California.
The American Civil Liberties Union filed a lawsuit against the act in the southern district of New York.
Planned Parenthood has challenged the act in a San Francisco federal court.
Kopf said he did not want to put Attorney General John Ashcroft in a "position where he has conflicting injunctions."
U.S. Justice Department attorney Anthony Coppolino, in arguing against the restraining order, told Kopf at the Wednesday hearing he should consider the act's extensive congressional record, which included findings that the partial-birth procedure is unsafe to mothers and never necessary.
He said the U.S. Supreme Court has recognized that Congress can decide fact issues. He said courts can review those findings, but the standard of review is whether lawmakers fairly weighed the facts in reaching their conclusions.
But Kopf questioned Coppolino about the lack of testimony in the record from medical experts, especially those who perform late-term abortions.
"What I see in the congressional record ... is a superficial review, not a lot of real medical" information, he said.
"Where are the docs who do this procedure?" Kopf asked. "Isn't that important if Congress was really interested in knowing about this procedure?"
Smith said the act was conceived in politics, rather than science.
"These (Congress) are political bodies (where) people make political statements," she said.
"People play to their voters," she said. "They're making these decision without any real medical knowledge, and that's upsetting."
Coppolino said Congress was intent on one thing: banning a hideous, late-term abortion procedure.
"A living fetus is extracted to kill it," he said. "People say, `It's an abortion. Who cares how you kill it.' Well, Congress cares. It approximates infanticide."
In a news conference Wednesday, Carhart hailed the judge's order.
"Clearly, I think this is a victory for American women," he said.
Carhart attempts to perform intact D&E in all abortions after 15 weeks, he says, because it poses fewer health risks to his patients.
Reach Butch Mabin at 473-7234 or at email@example.com. The Associated Press contributed to this report.
The title that was on the paper was "Doctors Win Temporary Victory".