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Ninth Circuit Judge Stephen Reinhardt wrote Tuesday that his court was “reluctant to invalidate an entire statute.” But you wouldn’t know it from the rest of his opinion in Planned Parenthood v. Gonzales. In striking down a federal curb on “partial birth” abortions, Reinhardt showed no reticence in explaining to Congress why the law is unconstitutional. “We, like every other federal court that has considered the question, conclude that both the Constitution and the law as established by the Supreme Court require us to hold the act unconstitutional,” Reinhardt wrote on page one of a 62-page opinion overturning the 2003 Partial Birth Abortion Act. “Unlike the other courts, however, we do so after fully considering the Supreme Court’s recent decision in Ayotte v. Planned Parenthood of N. New England, [ 06 C.D.O.S. 467],” which last month re-emphasized the Supreme Court’s insistence on a health exception, Reinhardt wrote. Consequently, the court enjoined the government from enforcing the ban � something the Second Circuit refrained from doing in a similar opinion Tuesday. Judges Sidney Thomas and William Fletcher joined Reinhardt in the Ninth Circuit’s opinion, which upheld a 2004 decision by U.S. District Judge Phyllis Hamilton of the Northern District of California. The Ninth Circuit panel overturned the law on the three grounds suggested by Planned Parenthood: the absence of a health exception, the “undue burden on a woman’s right to choose a pre-viability abortion” and the law’s vagueness in defining partial-birth abortion. Reinhardt said the vague wording of the law could severely limit even early pregnancy abortions and criticized findings by Congress that there is a consensus among doctors that partial-birth abortion is never necessary for a woman’s health. “The record before Congress clearly demonstrates that no such consensus exists,” Reinhardt wrote, adding that, “The evidence of the lack of medical consensus is replete throughout that record.” Such statements heartened the plaintiffs. “We’re very pleased that the court recognized that the law has serious constitutional flaws,” said Eve Gartner, a New York-based lawyer for Planned Parenthood who argued the case. “The only way to fix those constitutional problems is to strike down the law in its entirety.” Catherine Hancock, a U.S. Justice Department lawyer who worked on the case, referred questions to a spokesman who did not return a call by press time. The federal partial-birth abortion ban has been widely seen as a game of chicken between the Republican Congress and the Supreme Court, which in 2000 overturned a Nebraska ban on partial-birth abortion due to the absence of a health exception. In passing the 2003 law, Reinhardt wrote, Congress intentionally ignored warnings that without such an exception, the law would be unconstitutional. “Both of the act’s main sponsors, as well as various co-sponsors, asserted that the purpose of the act would be wholly undermined if it contained a health exception and that, if an exception were included, the statute would be of little force or effect,” Reinhardt wrote, adding a footnote with examples of legislators’ statements. Similarly, Reinhardt wrote, “As in the case of the health exception, Congress rejected repeated warnings of unconstitutionality, this time that the act’s scope was too broad. Shortly after Reinhardt’s opinion was published Tuesday morning, the Second Circuit U.S. Court of Appeals issued a similar ruling striking down the law. But that opinion was split and included a spirited dissent. The Second Circuit declined to enjoin enforcement of the law, citing the Ayotte decision, and asked for further briefing. Gartner says that while the Second Circuit opinion is likely to be appealed � and a 2005 Eighth Circuit opinion, Carhart v. Gonzales, 413 F.3rd 791, overturning the law is awaiting Supreme Court consideration � Reinhardt’s opinion should have the best chance of review, since it’s “the most complete case” due to its consideration of Ayotte. “The opening paragraph sort of explains why they should take this one,” Gartner added. The full text of Planned Parenthood v. Gonzales, 04-16621, will appear in Thursday’s California Daily Opinion Service.

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