WASHINGTON – Bush administration lawyers asked the Supreme Court on Monday to reinstate the first federal law banning a late-term abortion procedure, arguing that what critics call a “partial-birth” abortion should be outlawed because it is gruesome and is “never medically indicated” as a safer surgical procedure.
The government’s appeal asks the court to overturn the decision of a U.S. appeals court in St. Louis, which struck down the federal law as unconstitutional.
The outcome in a dispute over this type of abortion – known medically as intact dilation and extraction – is in doubt because the makeup of the court is changing, with moderate Justice Sandra Day O’Connor retiring, and her replacement still unnamed, and with the death of Chief Justice William Rehnquist.
In 2000, the justices ruled 5-4 to strike down a Nebraska law that made it a crime for a doctor to remove much of a fetus intact during a mid-term abortion. This procedure is used by some doctors who perform abortions in the fifth or sixth month of a pregnancy.
In the past, the Supreme Court had said that women can choose to end their pregnancies until the time a fetus can live on its own, which occurs after the sixth month of a pregnancy. These later-term abortions are more complicated than early abortions, and only a few doctors perform them.
In Nebraska, Dr. Leroy Carhart was the only physician who performed mid-term abortions, and in 1997 he filed a legal challenge to a state law banning such abortions, contending that the law was unconstitutional.
Ultimately, the Supreme Court invalidated the state’s law in 2000. The Supreme Court opinion said that “substantial medical authority supports” the doctor’s claim that banning this procedure “could endanger women’s health.”
Nonetheless, Congress passed the Partial-Birth Abortion Ban Act in 2003 and made it a federal crime to perform such abortions.
When Carhart sued again, this time challenging the new federal law, he won this year in both the U.S. District Court in Omaha and the 8th U.S. Circuit Court of Appeals in St. Louis. Those judges blocked the federal law from taking effect.
In their appeal to the Supreme Court, the administration’s lawyers said the lower courts should have deferred to the lawmakers in Washington, not the medical experts who testified in the case.
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