Copyright 1999 Gannett Company, Inc.
USA TODAY
October 28, 1999, Thursday, FINAL EDITION
SECTION: NEWS; Pg. 16A
LENGTH: 753 words
HEADLINE:
High court may weigh in on attempts to ban 'partial-birth'
abortion
BYLINE: Martin Kasindorf
BODY:
The four-year political and judicial storm
over attempts to ban
a controversial abortion method is veering toward the
U.S. Supreme
Court.
A federal appeals court in Chicago on
Tuesday upheld Wisconsin
and Illinois laws criminalizing the late-pregnancy
medical procedure
that doctors call intact dilation and extraction. Abortion
opponents
call the method partial-birth abortion.
The decision by the 7th Circuit U.S. Court of Appeals conflicts
with a Sept. 24 ruling in another appeals court, for the 8th Circuit,
that struck down similar bans in Iowa, Nebraska and Arkansas.
Often, but
not always, the Supreme Court will take a case to resolve
this sort of
conflict between federal circuits. The American Civil
Liberties Union, which
was on the losing side in the Chicago ruling,
says it plans to start the
Supreme Court appeal process within
days. Nebraska is considering an appeal
from its loss before the
8th Circuit.
At issue is a procedure in
which a doctor partially moves a fetus
from the uterus into the birth canal.
A surgical tool is used
to make an incision in the skull. The skull's
contents are drained
and the fetus is delivered, dead.
In 1995,
conservatives in Congress introduced legislation that
would ban the
late-term abortion method nationwide, with an exception
if the mother's life
were at stake. Congress passed such a bill
twice, in 1996 and 1997, and each
time President Clinton vetoed
it and Congress failed to override his veto.
The Senate passed
the bill again last week by a 63-34 vote, short of the 67
needed
to beat a third threatened veto.
Beginning with Michigan
in 1996, 30 states have enacted similar
bans. In 18 states, courts have
declared the laws unconstitutional
or have restricted their enforcement.
Usually, judges have invalidated
the laws on grounds that they are so
vaguely written that doctors
would fear performing almost any abortion
procedure.
The 7th Circuit, on a 5-4 vote, acknowledged that the
Illinois
and Wisconsin laws were broadly worded enough to potentially cover
commonly used and plainly legal methods. In an unusual twist,
the court
handed the case back to federal district courts and
ordered them to issue
"precautionary injunctions" strictly limiting
prosecutions to the tightly
specified "dilation and extraction."
"If this approach would
nonetheless be an example of brute force
used to save a statute--well,
courts do it all the time," wrote
Judge Frank Easterbrook, the author of the
majority opinion.
Wisconsin's law, one of the nation's most severe,
authorizes life
imprisonment for a doctor performing the banned procedure.
After the go-ahead, which is to take effect in 19 days, Illinois
and Wisconsin will join 10 other states where bans are in force.
The
other states: Indiana, Kansas, Mississippi, North Dakota,
Oklahoma, South
Carolina, South Dakota, Tennessee, Virginia and
Utah.
With
challenges to the bans working their way through five additional
federal
circuit courts, both sides in the controversy expect the
Supreme Court to
agree to hear the politically charged question.
Kate Michelman,
president of the National Abortion and Reproductive
Rights Action League
(NARAL), worries that if the conservative-led
Supreme Court upholds the
state bans, the ruling could water down
the court's landmark 1973 Roe
vs. Wade abortion rights
decision.
"If the court hears
arguments in the year 2000," she says, "I
think it will bring to the
forefront of the (presidential) political
debate the threat to Roe vs.
Wade." Simon Heller, a lawyer
for the pro-abortion rights Center for
Reproductive Law and Policy
in New York, is less worried. "I think the court
is likely to
find these statutes unconstitutional in the end," he says,
because
Justices Sandra Day O'Connor and Anthony Kennedy, both centrists,
will look askance at Judge Easterbrook's attempt to mend the broadly
written laws with court injunctions.
"If the court takes the
approach of Judge Easterbrook," Heller
says, "it means . . . states can pick
and choose the rights they
want to enforce and will be able to do it in
broad, vague language."
Doug Johnson, legislative director of the
National Right to Life
Committee, welcomes the prospect of a Supreme Court
hearing. "As
bad and destructive as Roe vs. Wade has been, even the
Supreme Court has never said there is a right to deliver an infant
and
then stab her through the head with surgical scissors."
LOAD-DATE: October 28, 1999
