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June 5, 2004

A Victory for Abortion Rights

At a perilous moment for women's reproductive freedom, it was a heartening development this week when a federal judge in California firmly rejected the 2003 federal ban on what its critics call "partial-birth abortion." With separate suits still pending in New York and Nebraska and the likelihood of appeals right up to the Supreme Court, this will not be the last word from the judiciary on this issue. But the clear and forceful parsing of the statute's myriad constitutional defects by the judge, Phyllis Hamilton, provides a worthy model for decisions to come.

Judge Hamilton's 117-page ruling duly faults the vagueness and ambiguity of the statute's key terms, especially the term partial-birth abortion, which was invented for political purposes and has, as she wrote, "little if any medical significance." Rather than being a narrow ban on a single late-term-abortion procedure, as its supporters insist, the judge concluded that the law as written would place an impermissably broad restriction on abortion rights in general. It would criminalize common dilation-and-extraction procedures performed long before fetal viability, including those performed as early as 13 weeks, and restrict doctors' options when treating women who have suffered miscarriages. The judge also scored the absence of the constitutionally required exception for medical actions taken to preserve a woman's health.

These are essentially the same defects that led a closely divided Supreme Court to strike down a remarkably similar state law four years ago. Much of Judge Hamilton's opinion is devoted to a scathing look at Congress's effort to circumvent that decision by, among other things, issuing findings misrepresenting relevant facts, deploying misleading terminology likening the pre-viability procedure dubbed partial-birth abortion by its opponents to the "killing of a newborn infant," and by declaring that such a procedure is never medically necessary.

It is sad that Congress was so quick to defy the Supreme Court by passing the copycat law. It is sadder still that President Bush signed it, and that lawyers from his Justice Department have endeavored to defend it, in part by stooping to an egregious fishing expedition — for the moment abandoned — to obtain women's private abortion records. The good news is that at least one judge in California has now rejected this brazen exercise in lawlessness.

Copyright 2004 The New York Times Company