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One day after President George W. Bush signed controversial legislation banning a late-term abortion procedure, a federal judge in New York granted a temporary restraining order that could prevent federal prosecutors across the country from enforcing the law. In a brief ruling, Southern District Judge Richard Conway Casey said the National Abortion Federation would most likely succeed in showing that the legislation violated the U.S. Constitution because it did not contain an exception allowing the procedure to protect a woman’s health. The contested law, called the Partial-Birth Abortion Ban Act of 2003, is the first federal legislation to ban an abortion procedure since the U.S. Supreme Court’s ruling in Roe v. Wade 30 years ago. The act bars a medical procedure known as intact dilation and extraction, which can be used to end pregnancies in the second or third trimester. The term “partial-birth” is one favored by those who oppose the procedure. Three years ago, the Supreme Court overturned similar legislation in Stenberg v. Carhart, 530 U.S. 914, saying it was unconstitutional because it did not have an exception for protecting a woman’s health. In Stenberg, the Court said such an exception was required when the medical community was in disagreement over whether a procedure could be safer for some patients. At oral argument on Wednesday, Assistant U.S. Attorney Sheila Gowan conceded that there remains disagreement among doctors as to whether the abortion procedure in question is ever necessary to protect a woman’s health. “Given the Defendant’s position, the Court is constrained, at this time, to conclude that it is substantially likely that Plaintiffs will succeed on the merits,” Casey wrote in National Abortion Federation v. Ashcroft, 03 Civ. 8595. Casey’s decision is similar to one issued Wednesday by a federal judge in Nebraska, but that ruling applies only to the four doctors who challenged the new legislation. Casey’s ruling applies to all doctors affiliated with the abortion federation, which claims that its members perform more than half of abortions nationwide. “Defendant John Ashcroft, in his official capacity as Attorney General of the United States, and his employees, agents, and successors in office, are temporarily restrained from enforcing the Partial-Birth Abortion Ban Act of 2003, against Plaintiffs, their members, officers, agents, servants, and employees,” Casey wrote. Donna Lieberman, executive director of the New York Civil Liberties Union, which assisted the American Civil Liberties Union in representing the abortion group, said the ruling has national implications because of the size of the National Abortion Federation’s membership. “This is a case that affects women all over the country,” she said. “This statute is indistinguishable, virtually, from the one that was struck down [in 2000].” In a statement, the U.S. Department of Justice said it would “continue to strongly defend the law prohibiting partial-birth abortions using every resource necessary.” Talcott Camp of the ACLU argued on behalf of the Abortion Federation. Casey ordered the parties to submit papers on a preliminary injunction by the end of the day Monday.

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