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Rare? Rarely

National | PARTIAL-BIRTH: Buried in a judge's order, an admission that an abortion method excused as rare is becoming commonplace

Issue: "Iraq: Present and past," June 12, 2004

Defenders of partial-birth abortion have long claimed that the procedure is rare. But trial testimony documented in a San Francisco ­district court ruling may reveal otherwise. Judge Phyllis Hamilton on June 1 struck down the federal ban on the abortion procedure in which second- and third-trimester babies are partially delivered, then killed. The ruling in Planned Parenthood vs. Ashcroft is the first to emerge from three separate lawsuits that seek to nullify the Partial-Birth Abortion Ban Act of 2003-and the first to shed new light on how often abortionists perform the grisly late-term procedure.

Judge Hamilton, a Clinton appointee, said the law "poses an undue burden on a women's right to choose an abortion"-a violation of Planned Parenthood vs. Casey, a case in which the U.S. Supreme Court held that any law regulating abortion must contain a health exception for the mother. The PBA ban allows abortionists to perform partial-birth abortions only to save a woman's life.

Planned Parenthood abortionists are apparently performing PBAs much more often than that. Judge Hamilton noted in her ruling that abortionists testifying as expert witnesses for the plaintiffs said that between 5 percent to 33 percent of all ­second-trimester dilation and evacuation (D&E) abortions they perform wind up becoming "intact" dilation and evacuation, or partial-birth, abortions.

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In a standard D&E, a doctor dilates the mother's cervix and uses forceps to tear the child from the womb piece by piece. Some doctors testified that they routinely use a process known as "serial dilation" to increase the chances of partially delivering second-trimester babies intact before killing them. Those who did not worried, and Judge Hamilton's opinion concurred, that doctors performing lawful "dilation and evacuation" (D&E) abortions might "accidentally" violate the PBA ban.

The judge's 117-page ruling also called into question the credibility of the four pro-life physicians who testified as expert witnesses for the government. She wrote that the witnesses' opposition to elective abortion-and their resultant limited experience in performing second-trimester abortions-rendered their testimony about the medical necessity of the ­procedure less credible. But she praised the expertise of Planned Parenthood's six pro-abortion witnesses who testified at trial, and did not attribute to them any bias, though five of them serve as medical directors for Planned Parenthood.

"It's a double standard," said Walter Weber, senior litigation counsel for the American Center for Law and Justice. "It's the idea that if you're in favor of abortion you're neutral and if you're not in favor of it, you're biased. That's like saying a police detective isn't qualified to testify about the commission of a crime because he's never committed the crime himself."

Judge Hamilton didn't agree, and wrote that the opinions of government witnesses were "colored" by their pro-life views. Her order permanently enjoined the PBA ban and prevents the U.S. Justice Department from enforcing it at Planned Parenthood's more than 900 clinics nationwide. Planned ­Parenthood abortionists may also perform the procedure at clinics and hospitals not affiliated with the group. The injunction also covers San ­Francisco public-health workers, since the city had sued to continue performing partial-birth abortions at its public hospitals. Separate, temporary injunctions issued last November still prevent enforcement elsewhere.

For pro-lifers, Mr. Weber said the San Francisco ruling has both up- and ­downsides.

The upside: If the judges in New York or Nebraska disagree with Judge Hamilton, they will be able to rebut her opinion in writing, adding anti-PBA arguments to a case-law record that litigants on both sides agree will one day land on the steps of the U.S. Supreme Court.

The downside: "It gives more ammo to the [PBA] challengers. They now have a judicial stamp of approval on some of their arguments." Challengers of the ban in trials still underway in New York and Nebraska, he said, will cite Judge Hamilton's opinion as an authority, to the detriment of ­pro-life attorneys. To say nothing of the ­detriment to the unborn children whose legal protections hang in the balance.

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