Abortion ban questions hit three federal courts

SAN FRANCISCO - A legal battle over abortion begins in courtrooms coast to coast today as three federal judges take up requests to derail the first substantial congressional limitation on abortion since the Supreme Court's Roe vs. Wade decision.

The simultaneous litigation centers on legislation President Bush signed last year banning a type of late-term abortion: what lawmakers defined as "partial-birth" abortion and what doctors call "intact dilation and extraction," or D&X.

The three trials will be filled with impassioned arguments on whether the law violates constitutional rights, as well as graphic, highly technical and conflicting testimony from medical experts.

"This case is going to be made or lost on the experts," said U.S. District Judge Phyllis Hamilton, who is presiding over the San Francisco litigation.

The National Abortion Federation, Planned Parenthood Federation of America and a handful of doctors sued in San Francisco, New York and Lincoln, Neb., to overturn the law. They say its language could criminalize more common types of abortion and could be a step toward abolishing abortion in the United States.

Courts and doctors have construed the 1973 Roe vs. Wade decision to mean abortions can be legally performed until the "point of viability," when a healthy fetus can survive outside the womb. That milestone is usually reached 24 to 28 weeks after conception. The outlawed procedure is generally performed before that point in the second trimester and occasionally in the third.

The Partial-Birth Abortion Act carries a maximum two-year prison term for doctors convicted of performing the procedure, but it has been put on hold pending the outcome of the litigation, which appears likely to reach the Supreme Court.

The high court struck down a similar Nebraska law almost four years ago because it lacked an exception for procedures done to preserve a woman's health. Anticipating this problem, Congress declared that "a partial birth abortion is never necessary to preserve the health of a woman" and is "outside the standard of medical care."

The abortion groups disagree, saying that doctors may find themselves with no good alternative to to protect a woman's life or health if problems develop.

The American Medical Association does not encourage use of D&X, but says it should not be banned. The College of Obstetricians and Gynecologists says alternatives to D&X usually exist, but that in some circumstances it may be the best procedure.

Opponents of the ban also argue that the language in the federal legislation is vague and could be interpreted as covering more common, less controversial procedures, including "dilation and evacuation." "We will do everything to keep this law from taking place," said Louise Melling, director of the American Civil Liberties Union's Reproductive Freedom Project.

The U.S. Justice Department, arguing Congress' case in all three courtrooms, will also address the tricky physiological question of when a fetus can feel pain.

The trials were not planned to be simultaneous. The Justice Department had asked for a trial date no more than four months after the initial filing of the lawsuits, and all three judges chose today, about the last day of that period.

Both sides said they anticipated that no matter which side wins this round of litigation, the three district court judges' rulings, expected to be issued as early as May, will be appealed to three separate federal circuit courts. Those circuit rulings would set the stage for an appeal to the Supreme Court, a process that could easily take a year or more.

- Information from the Washington Post was used in this report.

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