WASHINGTON, March 29 (UPI) -- The federal ban on "partial-birth" abortions lives or dies in a process that largely began Monday in three states, but it will almost certainly end up in the Supreme Court of the United States.
By a 5-4 vote in 2000's Stenberg vs. Carhart, the Supreme Court struck down similar state bans in Nebraska and elsewhere, in part because they did not contain exceptions for the health of a woman carrying a fetus.
Before enacting the ban last year, Congress tried to get around that obstacle by "finding" after hearings that there is never a medical necessity for "partial-birth" abortions. The constitutionality of the federal ban largely will depend on whether that "finding" can survive factual analysis in three federal courts.
The 2003 Partial-Birth Abortion Ban prohibits a specific type of abortion in which the fetus is partially delivered into the birth canal before being broken apart. A Justice Department trial brief describes the procedure as "late term," but this is a misnomer. "Partial-birth" abortions are not confined to the third trimester.
The procedure, sometimes called "dilation and extraction," or D&X, is supposedly separate from the more standard abortion procedures, called "dilation and evacuation," or D&E, in which the fetus is usually dismembered or evacuated from the womb.
Challengers of the federal ban, mostly clinics and physicians, say it is unconstitutional because it is too vague -- they say it might end up banning all forms of abortion -- and because it makes no exception for the health of the mother.
In a statement released late Friday, the Justice Department promised to "vigorously" defend the federal ban in all three trials.
"Next week, as trial begins in New York, Nebraska and California, the Justice Department will work vigorously to defend the law prohibiting partial-birth abortions," said department spokesman Monica Goodling. "The department will be devoting all resources necessary to defend the bipartisan findings of Congress that this violent practice is unnecessary, as well as painful and cruel to the partially born child. A bipartisan majority in Congress reached this conclusion after eight years of testimony from respected medical professionals who stated that partial-birth abortion is never medically necessary."
Department lawyers have been less than successful, however, in pre-trial maneuvers as they sought to obtain medical records of women who have undergone the procedure in each trial venue. The department argues that in order to prove that the procedure is unnecessary, it must compile data on why women have undergone D&X.
Hospitals have resisted turning the information over to the government, even with personal information that might identify individual women redacted.
A divided federal appeals court panel in Chicago Friday ruled that Illinois medical privacy law prevents even the release of redacted records in a separate case in that state. A federal judge in New York has ruled that the hospitals may turn over the redacted records, but refused to order them to do so.
Thus, the department goes into trial for the moment with one hand figuratively tied behind its back.
In its trial brief for the Nebraska case, the department relies on earlier findings in Congress. The brief makes no attempt to say that Congress's findings are indisputable, only that they are "reasonable," and in discussing the abortion procedure refers to the woman undergoing it as a "mother" and the fetus as a "child" in language that is highly unusual for a legal brief.
"Review of the legislative record will show that Congress's findings concerning the lack of any credible medical justification for partial-birth abortion are (at the very least) reasonable, and based on substantial evidence," the brief said. "The expert testimony to be presented at trial will also substantiate Congress's finding that partial-birth abortion is never medically necessary."
At trial, the government's experts presumably would be rebutted by medical testimony from the challengers, who say D&X is sometimes the only way to preserve a woman's ability to have children in the future.
The government brief also argues that "partial-birth" abortion is narrowly defined in the federal ban and is therefore not unconstitutional due to vagueness.
That doesn't mean that some other abortion procedure might not fall under the wording of the ban in some extraordinary circumstances, the brief said, but added, "A statute cannot be summarily invalidated as vague ... simply because it is difficult to determine whether certain imaginable but marginal offenses would fall within its language ...
"The act allows little room for uncertainty when it comes to describing the abortion procedure that Congress meant to ban," the brief continued. "To violate the act, it is quite apparent that a physician must set out, deliberately and intentionally, to deliver a living fetus intact, to a point where the fetus' head (or in the case of breach presentation, the navel) is outside the mother's body. The physician must do so, moreover, for the purpose of killing the fetus by a separate, overt act, other than delivery itself (usually puncturing the back of the child's skull and suctioning out its brains)."
The government's best chance of prevailing is to win at least one of the three trials and sustain its position through the appeals process, though at this point the chances of that happening appear to be slim.
With a 2-1 split in the three geographic federal appeals courts over the ban, the Supreme Court would be almost certain to review the three cases in a combined form.
Then the department still would be faced with convincing Justice Sandra Day O'Connor to support the federal ban -- a daunting task. In 2000, O'Connor joined the high court's four liberals to provide the swing vote in Stenberg that struck down similar state bans.
The best scenario from the government's viewpoint would be for President George W. Bush to win a second term, for O'Connor or one of the liberals to retire and for Bush to name a new justice whose philosophy on abortion is more in line with his own.
As for the trials beginning Monday, the one in New York City is expected to take four weeks; in Lincoln, Neb., four weeks, and in San Francisco, three weeks.
Assuming 2004 is taken up with the trials and appeals, it could be at least a year before a combined case reaches the Supreme Court. All the while, the federal ban against "partial-birth" abortion probably would be under court restraints that keep it from being implemented.
