U.S. plans abortion ban appeal

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BY BUTCH MABIN / Lincoln Journal Star

The U.S. Justice Department announced Tuesday it will appeal a Lincoln judge's ruling that declared a federal abortion ban unconstitutional.

U.S. District Judge Richard G. Kopf struck down the Partial Birth Abortion Ban Act of 2003 in a ruling earlier this month.

Federal judges in New York and San Francisco struck down the law in rulings this summer. The Justice Department has appealed the San Francisco decision to the 9th U.S. Circuit Court of Appeals.

The department was expected to appeal Kopf's ruling to the 8th U.S. Circuit Court of Appeals in St. Louis on arguments the judge erred in ruling the ban was flawed because it lacked a health exception and was overly broad.

Priscilla Smith, one of the attorneys who represented Bellevue doctor LeRoy Carhart and three other physicians in the Nebraska case, said the appeal was expected.

"I fully expect them to make the same losing arguments they've been making all along," said Smith, an attorney with the Center for Reproductive Rights in New York.

Carhart could not be reached for comment Tuesday.

Smith estimated the 8th Circuit would hear the case by early summer next year.

The U.S. Supreme Court would almost certainly take the cases if the respective circuit courts disagree on the ban's constitutionality, observers say.

Smith said agreement among the circuits would make it less likely that the high court would take the cases. But, she added, even with consensus among the circuits, the Supreme Court might still hear the appeals because they involve a federal law. Also, she said, the court's membership could change in the meantime, with new justices aboard who want to review the law.

The current court struck down a similar Nebraska law in a 5-4 ruling in 2000.

Kopf, in a 474-page order Sept. 8, said the U.S. Congress passed the ban despite evidence the procedure is not only safe but sometimes medically necessary.

A federal judge in San Francisco ruled in June the ban potentially could outlaw all abortions and was further flawed because it contained no health exception for women. In August a New York judge said the ban was unconstitutional because it lacked the health exception.

Carhart, one of the plaintiffs in the Nebraska case, in 1997 challenged a similar Nebraska measure that outlawed so-called partial birth abortions. Kopf declared the measure unconstitutional in a 1998 order, which was affirmed by the Supreme Court in 2000.

At the center of the legal dispute is an abortion procedure that entails delivery of the fetal body outside the mother and then puncturing or collapsing its head.

Supporters of the ban said it was narrowly written to outlaw the specific procedure, which they have described as inhumane, gruesome and medically unnecessary.

Opponents of the ban said it would outlaw methods that are sometimes necessary to protect a woman's health. They also argued the ban would outlaw one of the most common abortion procedures, dilation and evacuation, or D&E.

Kopf agreed in his order this month, calling D&E the gold standard for pre-viability abortions from the early second trimester through the 24th week.

Reach Butch Mabin at 473-7234 or bmabin@journalstar.com.