Friday, April 2, 2004
This case, too, is expected to go to the Supreme Court.
LINCOLN, Neb. (AP) -- The scene unfolding in a federal courtroom here the past week is all too familiar to Dr. LeRoy Carhart.
Four years after he got the U.S. Supreme Court to strike down Nebraska's ban on a controversial abortion procedure, he's back in the court fighting a similar federal ban passed by Congress last year.
"I'm back in court today because the government is back in my office telling me I cannot put my patients' health first," Dr. Carhart said after his lawyers from the Center for Reproductive Rights in New York rested their case Thursday. Dr. Carhart testified that the federal law is so vague it would outlaw nearly all abortions after the first trimester.
Defense to come
Justice Department lawyers will begin their defense of the ban Monday.
The new law has not been enforced because judges in Lincoln, New York and San Francisco agreed to hear evidence in three simultaneous nonjury trials on whether the ban violates the Constitution.
The ban would be the first substantial limitation on abortion since the Supreme Court legalized it 31 years ago in the landmark case Roe vs. Wade.
The measure bars a procedure doctors call "intact dilation and extraction," or D & amp;X. Opponents call it partial-birth abortion. During the procedure, generally performed in the second trimester, a fetus is partially removed from the womb and its skull is punctured.
The Bush administration has argued that the procedure is "inhumane and gruesome" and causes the fetus to suffer pain.
The problem
Under the new law, doctors can get up to two years in prison for committing an "overt act" to kill a partially delivered fetus. But Dr. Carhart said that could be interpreted as covering procedures including "dilatation and evacuation," the most common method of second-trimester abortion.
"This act covers every D & amp;E that I did," Dr. Carhart said. "Everything that I do to cause an abortion is an overt act."
Dr. Carhart said at least once a month, an entire fetus is expelled from the mother during a D & amp;E he is performing. "The fetuses are alive at the time of delivery," he said. There is a heartbeat "very frequently."
Of the 1.3 million abortions performed in the United States each year, an estimated 140,000 are D & amp;Es and an estimated 2,200 to 5,000 are D & amp;X procedures. Almost 90 percent of abortions occur in the first trimester.
Earlier challenge
Dr. Carhart earlier brought a challenge that eventually led the Supreme Court to overturn in 2000 Nebraska's ban on D & amp;X abortions. The high court said the Nebraska law and others like it were an "undue burden" on women's rights.
U.S. District Judge Richard Kopf, who is presiding over the trial in Lincoln, also presided over Dr. Carhart's challenge to the Nebraska ban.
In blocking enforcement of the federal ban last year, Kopf cited concerns that the law did not contain an exception for preserving the health of a woman. 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."
After testifying Thursday, Dr. Carhart issued a statement that said the abortion ban is not about the D & amp;X procedure.
"It affects the safest procedures I perform as early as 12 weeks of pregnancy. I won this case in the Supreme Court three years ago," he said.
Supreme Court likely
The issue is expected to reach the U.S. Supreme Court.
On Thursday, meanwhile, the president signed legislation at the White House expanding the legal rights of fetuses. The Unborn Victims of Violence Act, which took five years to get through Congress, makes it a crime to harm a fetus during an assault on a pregnant woman.