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Gregory Katsas wouldn’t say it Thursday — “I can’t be quoted,” the federal government lawyer told a herd of reporters after arguing before the 9th Circuit — but he, like everyone else in the courtroom, knew there was little chance he had persuaded three liberal judges to uphold a wide-ranging federal abortion restriction. Yet considering the circumstances, the Justice Department lawyer managed a pretty good reception from 9th U.S. Circuit Court of Appeals Judges William Fletcher, Sidney Thomas and Stephen Reinhardt. “I went and congratulated the DOJ attorney because they do have to make hay, so to speak,” said Aleeta Van Runkle, the San Francisco city attorney office’s chief of neighborhood and community services, who had intervened in opposition to the law. “But he had bad facts.” The judges seemed to agree with that assessment: While they didn’t appear frustrated with Katsas, they also showed no signs of agreeing with any of his arguments. The judges seemed intensely skeptical of everything the government presented, including the notion that the court should defer to Congress’ assertion that “partial birth” abortion is unsafe and never needed, while medical experts disagree. Congress “says ‘everyone agrees it’s never necessary,’ and you’re confronted with the record” of medical experts who disagree, said Reinhardt, who asked Katsas what a court should do in that situation. “You [should] assume that Congress’ finding,” Katsas said, “is supported by substantial evidence.” The three judges seemed unwilling to take that leap and were also troubled by the other grounds on which U.S. District Judge Phyllis Hamilton of the Northern District of California overturned the law last year. In a broad ruling, Hamilton said the ban was too vague, would pose an undue burden on a woman’s right to choose and did not have an exception for when a woman’s health is at risk. The vagueness issue seemed particularly troubling to the 9th Circuit judges, who spent part of the oral arguments Thursday trying to figure out when an abortion would become illegal. The Partial Birth Abortion Act of 2003 made it illegal to extract a fetus after the first trimester without first dismembering it. On Thursday, the judges indicated they were dissatisfied with that law because it could prevent doctors from exercising their judgment. The judges pointed out that an attempt to remove a fetus whole often fails, so the fetus ends up being dismembered before removal. Katsas and his opposing counsel, Eve Gartner of the Planned Parenthood Federation of America Inc., agreed that that frequently occurs. “You start out intending to commit a crime, but if you continue doing what is likely to happen, you end up not committing a crime,” Reinhardt said. “In order to do it properly, to protect the health of the woman, [a doctor] is going to engage in a legally prohibited act,” Fletcher said. The judges also asked Katsas how doctors would know whether a law that applies to interstate commerce governs locally run clinics. “What notice is there to a physician that he or she is violating the statute?” Thomas asked. “How does a physician know?” Katsas said free clinics — like the one the city runs at San Francisco General Hospital — are covered by the law and “can’t be separated out on the basis that that individual provider chooses to provide that service for free.” The case, Planned Parenthood v. Gonzales, 04-16621, is the third challenge of the partial birth law to end up in the federal circuit courts. In July, the 8th Circuit upheld a trial judge’s ruling that the law was unconstitutional. The government has filed a petition for Supreme Court review of that case, Carhart v. Gonzales, 04-3379. And on Oct. 6, the 2nd Circuit heard arguments challenging a trial judge’s ruling against the government. With those cases outstanding, Katsas told the 9th Circuit judges Thursday that he’d be open to letting them hold off on issuing an opinion until the Supreme Court decides whether to review Carhart. Gartner said she hopes to get a ruling from the 9th Circuit panel. “I think that the judges’ questions showed that the law has some serious constitutional problems,” she said.

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