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The congressional ban on certain late-term abortions was defended this week as a necessary step to avoid inflicting pain on the fetus through a procedure that offers no benefit to the health or safety of the mother. In an opening statement Monday in federal court in lower Manhattan, Assistant U.S. Attorney Sean Lane said so-called partial birth abortion is “an inhumane and gruesome procedure” that was rightfully banned by the Partial Birth Abortion Act of 2003. Arguing the other side, A. Stephen Hut Jr. of Wilmer Cutler Pickering said the act’s language is so vague that it would criminalize several procedures that are now legal and expose doctors to prison for working to protect the health of their patients. Hut is representing the National Abortion Federation and eight physicians who won a temporary restraining order against enforcement of the act last year. The law, he said, “is hopelessly unclear in defining the acts that are prohibited.” The bench trial before Judge Richard Conway Casey is one of three that began Monday on the constitutionality of the statute. The federation and other plaintiffs have also sued for declaratory relief in Lincoln, Neb., and San Francisco, making it probable that the U.S. Supreme Court will eventually decide the issue. Trials in those cities also began Monday. The Partial Birth Abortion Act was vigorously denounced by the federation and other pro-abortion groups as part of a long-term strategy by anti-abortion groups and their supporters in Congress to erode a woman’s right to reproductive choice. The American Civil Liberties Union, which is also representing the plaintiffs, said the language of the act, which provides for criminal penalties that include large fines, would prevent doctors from performing procedures used in 90 percent of second-trimester abortions. Advocates of the legislation defended the act for banning a brutal procedure during which, in the words of Lane, a fetus “can and will feel pain.” The two sides use different terminology to describe the procedure: Advocates of the ban use the phrase partial birth abortion and opponents call it “intact dilation and extraction” (D&X). Both sides also disagree over whether the fetus is partially delivered when it is killed. The act’s opponents insist that the fetus’ head must be irrevocably damaged for the fetus to be brought through the cervix. Monday, Hut focused on the legislation’s lack of an exception for times when the procedure is needed to protect the health of a mother. He said this defied the “clear mandate” of the Supreme Court’s decision in Stenberg v. Carhart. In Stenberg, the Supreme Court found that a Nebraska ban was unconstitutional, first, because it lacked a maternal health exception and, second, because it placed an undue burden on reproductive choice by banning the procedure used for many second-trimester abortions. Citing Stenberg, the New York plaintiffs asked Casey to declare the act unconstitutional. He declined to do so in a ruling on March 17. He noted that in Stenberg, the Supreme Court said a health exception was required because the Nebraska law, in the words of the court, “altogether forbids D&X” – the induced dilation of the cervix followed by the removal of the fetus from the uterus through the cervix “intact, i.e., in one pass, rather than in several passes.” The difference between the Nebraska law and the Partial Birth Abortion Act, Casey said, was that Congress adopted the act after years of hearings that culminated in factual findings. These included the finding that partial birth abortion is never necessary to preserve a woman’s health. Another said that the procedure was outside the “standard of medical care.” In denying summary judgment to the plaintiffs, Casey said a trial was needed “to evaluate the truth of Congress’ factual determination that partial birth abortion is never medically necessary to preserve a woman’s health.” Lane repeatedly stressed the importance of those congressional findings in his opening. He said Congress “precisely defined what it was talking about” when it adopted the act. Hut said the possibility of a two-year prison term for violating the act, coupled with the vagueness of its terms, would make doctors so afraid of prison that they would decline to perform many abortion procedures. Lane said the act is anything but vague. “The act,” he said, “narrowly and specifically defines partial birth abortion as a procedure where in the situation of a breech presentation a doctor deliberately and intentionally vaginally delivers a living fetus until part of the fetal trunk past the navel is outside of the body of the mother for the purpose of performing an overt act that the person knows will kill the partially delivered fetus.” he said. “Thus the act sets forth the intentional and sequential nature of the banned procedure.” DOCTORS TO TESTIFY The plaintiffs plan to call at least 12 doctors to testify about abortion procedures. Hut said the court would hear that in 95 percent of the cases of abortions at issue, all of which involve abortions before the fetus becomes viable, the mother is terminating a wanted pregnancy either because of fetal anomalies or because a continued pregnancy would jeopardize her health. He warned the court that the trial would involve “very raw stuff,” with “often graphic descriptions of trauma to the body, bleeding and other similarly off-putting details.” Hut also acknowledged that discussing procedures involving second-trimester human fetuses “adds an element of emotion that may make the testimony even more difficult.” That’s the very point, Lane said. “Plaintiffs’ counsel noted that the terms used at the trial will be graphic,” Lane said. “In fact, it is the very nature of this procedure itself that gives discomfort.” Casey issued pretrial rulings in the case including one allowing the government to introduce evidence that a fetus feels pain. On Monday, New York-Presbyterian Hospital won a stay from the 2nd U.S. Circuit Court of Appeals of Casey’s order allowing the subpoena of medical records. As part of the suit, the government is seeking records on the use of the procedure. This article originally appeared in the New York Law Journal , a publication of American Lawyer Media.

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