Abortion law to be tested in 3 courts

SAN FRANCISCO -- A historic legal battle over abortion begins in courtrooms coast to coast Monday as three federal judges take up requests to derail the first substantial congressional limitation on abortion since the Supreme Court's landmark Roe v. 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 v. 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 weeks to 28 weeks after conception.

In the outlawed procedure, generally performed before that point in the second trimester and occasionally in the third, a fetus is partially delivered before being killed, usually by puncturing its skull.

The number of the procedures performed annually in the United States is estimated at 2,200 to 5,000, out of 1.3 million total abortions.

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 the banned procedure 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." Known as D&E, it is the most common method of second-trimester abortion. An estimated 140,000 D&Es take place in the United States annually.

"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 begin to feel pain.

The law says that the procedure should be outlawed because of "its disturbing similarity to the killing of a newborn infant" and its "disregard for infant human life."

Justice Department lawyer Mark Quinlivan wrote in court briefs that the act "is a clear reflection of Congress' well-informed judgment that the public interest is best served by prohibiting partial-birth abortions."

The government's efforts to prove that the banned procedure is never necessary sparked a separate controversy over medical privacy.

To support its argument, the government sought records from abortion providers -- and won only a partial victory. U.S. District Judge Richard Casey, hearing the case in Manhattan, ruled that New York-Presbyterian Hospital must comply. Judge Hamilton of San Francisco was among other judges who ruled that the medical records must remain private.

While Planned Parenthood and other doctors and groups involved in the suit called the request an invasion of privacy, the government demanded the records -- absent patients' names -- in hopes of answering the central claim by the bill's opponents that the procedure is sometimes medically necessary.