Government
"Partial-birth abortion" ban loses 1st round
■ The decision is the first among the three lawsuits filed in the federal courts. Experts expect the Supreme Court to have the final say.
By Tanya Albert amednews correspondent — Posted June 21, 2004
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The federal court ruling that the Partial-Birth Abortion Ban Act of 2003 is unconstitutional helps ensure that Congress will stay out of the patient-physician relationship, some physicians say.
But other doctors continue to oppose the abortion procedure and hope that other courts will declare the law enforceable.
The ruling, issued earlier this month by the U.S. District Court for the Northern District of California, supports the California Medical Assn.'s arguments.
"We believe generally that Congress should not impose itself in clinical decision-making," said the group's CEO, Jack Lewin, MD.
The CMA filed a friend-of-the-court brief in the case, which the Planned Parenthood Federation of America brought against the federal government. The lawsuit challenged the act, which outlaws "partial-birth abortion" -- a nonmedical term lawmakers and some opponents use to refer to intact dilatation and extraction -- and creates criminal punishment for physicians who perform the procedure. The CMA's brief did not offer an opinion on abortion but on government interference with the practice of medicine.
"If Congress were to legislate a medical procedure like this, it may open the door for lawmakers to make decisions on other medical issues usually left up to physicians," Dr. Lewin said. "You wouldn't want Congress opining on whether penicillin is an appropriate treatment for strep throat."
The American College of Obstetricians and Gynecologists agrees.
"ACOG opposes this legislation by Congress that attempted to supersede the medical judgment of a trained physician, in consultation with a patient, as to what is the safest and most appropriate medical procedure for that particular patient," the group said in a statement.
Suzanne T. Poppema, MD, a retired family physician from Seattle, said doctors shouldn't have to worry about criminal consequences of medical decisions. She said the way the law is worded, it could apply to more than just intact dilatation and extraction.
"Instead of thinking logically one step to the next and about the patient's safety, a physician could be distracted by the fact that they could face punishment for the decision they made that was in the best interest of the patient," said Dr. Poppema, first vice chair for Physicians for Reproductive Choice and Health.
Eric Schaff, MD, a pediatrician from Rochester, N.Y., who is also affiliated with PRCH, said: "The important issue here is that doctors and patients can make decisions, not legislators."
But the topic is highly controversial. Some physicians believe that there is never a reason to perform intact dilatation and extraction. These doctors believe the California court made the wrong call in this case, and they hope to see it overturned.
"If you say there has to be a health exception, a doctor can decide for any reason to perform the procedure," said David Stevens, MD, executive director of the Christian Medical & Dental Assns.
He also questioned why physicians who say they believe the procedure is safer than other methods use it in fewer than 1% of abortions.
"Planned Parenthood may have won in court, but it lost in the court of public opinion," Dr. Stevens said.
Physician testimony about how the law would influence the way they practice medicine figured into U.S. District Court Judge Phyllis J. Hamilton's decision.
Hamilton noted that physician experts for both sides were accomplished in their fields but said she put more weight on those who testified for Planned Parenthood because they had performed intact dilatation and extraction and those who testified for the government had not.
The 117-page ruling cited testimony from doctors who perform abortions. One doctor Hamilton included in her opinion said, "My overriding concern is that if I continue to practice ... second-trimester abortions in the way I believe is the safest for women, that I could be in prison." Another said the act "would really cause a significant disruption between [me and] the patient."
Hamilton concluded that the law is unconstitutional because it uses vague or ambiguous terms, including "partial-birth" abortion and "living fetus." She also said the act has no legal exception to preserve a woman's health, something the U.S. Supreme Court has said is necessary in such a law, and it puts an undue burden on a woman's ability to choose a second-trimester abortion.
"Because physicians may face criminal prosecution under the act for violative procedures, the nature of which they cannot always predict, the act would have a significantly negative impact on their practice and their relationships with their patients, and in some circumstances, already has," Hamilton wrote.
Her ruling means that the government cannot enforce the law against the plaintiffs in the case or their members, officers, agents, employees, contractors and others "in active concert or participation with them."
The Planned Parenthood Federation of America, Planned Parenthood Golden Gate, and the city and county of San Francisco were the plaintiffs.
Legal fight isn't over
The California court is the first of three federal courts considering challenges to the Partial-Birth Abortion Ban Act to make a ruling, but it won't be the final say.
At press time, federal judges in Nebraska and New York had not yet issued decisions.
Several physicians filed the lawsuit in the U.S. District Court for the District of Nebraska. The National Abortion Federation and others filed the lawsuit before the U.S. District Court for the Southern District of New York.
In the end, though, it likely won't matter what the lower courts say. Experts agree that the U.S. Supreme Court will likely decide the matter.
At press time, the Dept. of Justice had not filed an appeal in the California case, but spokeswoman Monica Goodling said department lawyers were reviewing the court order.
The government will continue to work toward fulfilling "the goal of the president to protect innocent new life from the practice of partial-birth abortion," she said.
"The department will continue to devote all resources necessary to defend this act of Congress," Goodling said in a statement.
Christian Medical & Dental's Dr. Stevens expects that the decision could be different in the future. "Planned Parenthood can find a judge who agrees with their set of facts," he said. "Ultimately, this is going to be decided in the Supreme Court."