Appeals court upholds Ohio "partial-birth abortion" law

A panel of federal appeals judges has ruled that Ohio lawmakers found the right language to legally ban dilatation and extraction, a procedure that has become commonly known as "partial-birth abortion."

The 2-1 decision in December 2003 from the 6th U.S. Circuit Court of Appeals in Cincinnati states that Ohio's law meets requirements the U.S. Supreme Court outlined in two earlier cases. The high court requires that such laws include an exception to protect the mother's health and that they not place an undue burden on a woman's right to end her pregnancy.

Anti-abortion activists were pleased that the court panel called Ohio's statute a commonsense law. It identifies three abortion procedures that remain legal. "The actual law specifically excludes the majority of abortions," said Denise Mackura, executive director of Ohio Right to Life. "This is not an abortion ban, it is just a procedure ban."

But government involvement in determining what medical procedure a doctor may or may not choose to use is troubling to Cincinnati gynecologist Martin Haskell, MD, who brought the lawsuit challenging Ohio's law.

The health exception is inadequate, and the law imposes an undue burden by essentially criminalizing dilation and extraction even when the treating physician believes it may be the best option for the woman, he stated in his lawsuit.

"This totally disregards the profession of the physician and tries to micromanage medicine," said Alphonse A. Gerhardstein, the attorney representing Dr. Haskell. "What a physician is looking for is the safest procedure, and you can't do that under this bill. This is about options in abortion."

In January, Dr. Haskell appealed the panel's ruling to the full 6th Circuit. The law -- which carries penalties of two to eight years in prison for physicians who violate it -- has yet to go into effect.

Ohio joins more than 20 states and Congress in passing bans on this type of abortion that supporters hope can stand up in court. There have been as many lawsuits as there are laws.

So far the highest courts to consider the laws in different jurisdictions have not upheld the challenged statutes. These failed laws include an earlier Ohio statute that the 6th Circuit found unconstitutional because it put an undue burden on a woman's right to have an abortion.

The U.S. Supreme Court in June 2000 struck down a Nebraska statute in part because it didn't have a health exception "where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." And that is a central question in the latest Ohio case, as it will likely be in challenges to the federal law passed in 2003.

Disputing the law's exception

Ohio's ban was signed into law by Gov. Bob Taft a month before the June 2000 U.S. Supreme Court decision came down. Its exception allows dilatation and extraction only when "it is necessary, in reasonable medical judgment, to preserve the life or health of the mother as a result of the mother's life or health being endangered by a serious risk."

The law goes on to define serious risk as "any medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function."

Two judges on the 6th Circuit are satisfied that this exception makes the statute constitutional.

"In the [doctor's] view ... a health exception must make the partial birth abortion method available whenever any physician deems it 'simply safer' than using alternative methods," the judges wrote.

"Ohio responds that a valid health exception need only permit the partial birth procedure when necessary to prevent significant, as opposed to negligible, health risks. ... We agree."

But Dr. Haskell disagrees. In his appeal, he argues that the U.S. Supreme Court's intention in the 2000 decision in Stenberg v. Carhart was to make sure that women aren't forced to use riskier methods of abortion.

"The [Ohio] act does not allow the 'partial birth procedure' to be performed when it is simply safer than alternative methods of abortion, and that is what Carhart requires," Dr. Haskell argues in his appeal.

The dissenting judge on the 6th Circuit agrees with that argument.

"The adequacy of that [health] exception must be judged according to the constitutional requirement that abortion regulations allow exceptions when 'necessary, in appropriate medical judgment, for the preservation of the life or health of the mother,' " Judge Arthur J. Tarnow wrote.

The Ohio statute "forces some women to use riskier methods of abortion and thus fails to meet this requirement in both its pre- and post-viability contexts," Tarnow stated in his dissent.

Both sides believe they will win on appeal.

State officials are "confident this law will stand up" in future court challenges, said Mark Gribben, spokesman for Ohio Attorney General Jim Petro.

Gerhardstein said both he and Dr. Haskell believe that the current opinion is wrong. "The strong dissent gets it right," he said.