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The recently concluded bench trial over the Partial-Birth Abortion Ban Act was not for the faint. Testimony included graphic descriptions of doctors injecting poisons to stop fetal hearts from beating, scissors puncturing skulls and cutting off heads, and fetuses being pulled out of women’s wombs, sometimes one broken body part at a time. For attorneys working on the frontlines of the abortion debate, the gruesome words are nothing new. Both sides — the government and Planned Parenthood, which challenged the ban — agree that to intelligently argue they have to delve into the details of abortion procedures. As such, litigation over abortion becomes, at times, a battle over language as much as it is a battle over policy. “Those who oppose abortion have long believed that if you could focus the public debate on what happens during an abortion, as opposed to the more important policy issues,” they could win the debate, said Kathryn Kolbert, a Philadelphia reproductive rights attorney. Kolbert did not work on any of the three federal challenges to the ban — in San Francisco, Nebraska and New York. However, she represented Planned Parenthood in Planned Parenthood v. Casey, 505 U.S. 833, before the U.S. Supreme Court. The trial in front of U.S. District Judge Phyllis Hamilton ended Friday with closing arguments that again focused on differences between surgical procedures used in various types of abortions and on whether Congress or individual doctors should decide what’s best for a woman’s health. Careful listeners at the three-week trial could also note differences in the terms used by plaintiffs and Department of Justice lawyers defending the ban. The government often used “dismemberment” where Planned Parenthood said “disarticulation,” used “head” instead of “calvarium,” and used “kill,” while many doctors prefer “cause fetal demise.” For lawyers who defend women’s abortion rights, the word choice is a conscious decision by the government to inflame the debate, much like protesters who wave photographs of aborted fetuses at anti-abortion rallies. Lawyers for Planned Parenthood have challenged the law on a variety of constitutional grounds. To them, one of the most offensive aspects of the new law is that it is based on congressional findings that say certain abortion procedures are never medically necessary and in fact are dangerous to a woman’s health. Government lawyers argued that Congress is a better fact-finder than a court, so Hamilton should give deference to the eight years of congressional hearings that led up to the law’s passage last year. Indeed, even the name of the law has been hotly debated. One of the main points of Planned Parenthood’s challenge is that Congress’ description of the medical procedure it is trying to outlaw — “partial-birth abortion”– does not succinctly describe a specific practice used by doctors. Rather, the term is so fuzzy that if left to stand, doctors won’t know exactly what they could go to prison for performing, Planned Parenthood argued. “I think it’s very clear both from the language of the act, but also how the government litigated, [that] what the government intends to do is ban the safest, most common procedures used in second-trimester abortions,” said Beth Parker, a Bingham McCutchen lawyer who represented Planned Parenthood at trial. In its briefs, the government denied that the term is vague. Parker also said the government “escalated” its use of controversial terms as the case unfolded. The Department of Justice lawyer who led the team defending the ban, Mark Quinlivan, said he couldn’t discuss the case, citing DOJ policy that restricts attorneys’ ability to talk about pending matters. Attorneys have until April 26 to submit their final papers in the case. Judge Hamilton said she hopes to make her decision quickly. “I think that I’ve actually heard enough, but I would like you all to pull it together for me,” Hamilton said Friday after the last witness left the stand and attorneys prepared for closings. Hamilton, a President Clinton appointee, issued a preliminary injunction to halt the ban last fall after it was passed by Congress and signed by President Bush. The case is Planned Parenthood Federation of America v. John Ashcroft, 03-4872.

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