The Third Time Is the Charm?

By Cynthia L. Cooper, Women's eNews. Posted September 14, 2004.

On Wednesday, U.S. District Court Judge Richard Kopf of Nebraska issued an opinion declaring that a federal law attempting to ban abortion is unconstitutional and blocked the law from taking effect.

He is the third of three federal judges from three parts of the country holding three separate trials to reach the same conclusion: that a federal ban on abortion passed by Congress and signed by President George Bush in 2003 cannot stand up against the constitutional rights of women to make their own medical decisions about abortion without the interference of the government.

At a minimum, the judges said, the law cannot endanger the health of women who need an abortion by threatening their doctors with arrest for using their best medical judgment.

"The Attorney General cannot enforce this ban. It's a goner," said Priscilla Smith, director of domestic litigation at the New York-based Center for Reproductive Rights, which challenged the law in Nebraska federal court.

Ban Leads to Public Confusion

The ban could have had broad national impact on doctors and other health providers in every state. In order to assure that medical personnel would have the widest possible protection from arrest, pro-choice lawyers developed a strategy of challenging in three different federal courts the law that barred common abortion procedures performed after the 12th week of a pregnancy.

The case in Nebraska was brought by the Center for Reproductive Rights on behalf of four doctors, including Dr. LeRoy Carhart, who previously challenged the state law in Nebraska, taking it all the way to the U.S. Supreme Court. The Reproductive Freedom Project of the American Civil Liberties Union and Wilmer Cutler Pickering Hale and Dorr LLP filed the case in New York on behalf of the National Abortion Federation, a Washington D.C. association of abortion clinics, and other doctors. Planned Parenthood Federation of America and Planned Parenthood Golden Gate brought the action in California, on behalf of all Planned Parenthood affiliates.

Women's health and legal experts say that the federal law barring so-called partial birth abortions represents a long-standing campaign by the National Right to Life Committee to challenge women's right to choose through restrictive legal measures combined with expansive and often misleading rhetoric aimed at increasing public opinion against abortion. In the instance of "partial-birth abortion," the rhetoric did not reflect how the law would actually affect women, leading to much public confusion.

Signed into law by President George W. Bush in November 2003, the legislation attempted to overturn a decision of the U.S. Supreme Court in 2000, which rejected similar state laws.

In that case, known as Stenberg v. Carhart, the nation's highest court found that Nebraska's so-called partial birth abortion law impermissibly endangered a woman's health. It also said the law was too broad, extending to many types of abortion practices after the 12th week of pregnancy, and not simply to "late-term" abortions, as is often mistakenly believed.

But Congress continued to pursue a federal ban, ignoring and even attempting to overrule the Supreme Court.

In this most recent round of court challenges, all three federal judges responded vigorously, even though they had differing perceptions of the medical procedure at hand.

Judge Kopf issued a 474-page opinion, responding to Congressional claims that an earlier opinion he wrote was thin on reasoning. His opinion begins with a quotation from a PBS television broadcast, describing the "tiny passageway" of the cervix, which must widen so greatly to permit the passage of a fetus. The surgical process that the law bans deals with this very real biological fact, Judge Kopf noted.

"While the procedure is infrequently used as a relative matter, when it is needed, the health of women frequently hangs in the balance," he said.

Judge Kopf found that the law is unconstitutional because it lacks a health exception, bans abortions prior to viability, and that, as a law that subjects people to arrest, is too vague. Unlike the other judges, Judge Kopf only barred enforcement of the law when it applies to fetuses prior to viability and declined to apply the decision to viable fetuses.

Cynthia L. Cooper is an independent journalist in New York who writes frequently about reproductive rights and justice topics.

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