2 US judges block new abortion ban

WASHINGTON -- Federal judges in New York and California yesterday blocked the Justice Department from enforcing new restrictions on the procedures that doctors are allowed to use to end pregnancies, issuing orders that sweep across 49 states and cover most of the nation's clinics and hospitals that provide abortions.

US District Judges Richard Conway Casey in New York City and Phyllis J. Hamilton in San Francisco ruled that the Partial-Birth Abortion Ban Act, which President Bush signed Wednesday, cannot be enforced against the National Abortion Federation, the Planned Parenthood Federation, or their members.

Both judges said the new law could be found unconstitutional because it does not provide an exception to protect the health of the pregnant women whose doctors believe the banned procedure is the safest for them.

The two court orders followed by a day a narrower one issued by a federal judge in Nebraska that bars enforcement of the law against four doctors who perform abortions. The three orders together left few providers without protection from potential prosecution for performing the banned procedure, and raised the likelihood that a legislative battle that conservatives had waged since 1995 will now be decided in the Supreme Court after appeals in one or more of the cases.

The Justice Department reacted to the new orders by vowing to "strongly defend the law . . . using every resource necessary."

Nancy Northup, president of the Center for Reproductive Rights, the group that obtained the Nebraska order, said that the court actions yesterday mean that "many abortion providers in the nation can continue to provide safe abortion care to their patients without fear of prosecution."

The National Abortion Federation is the nation's largest organization of abortion providers, with more than 400 facilities serving more than half the women who seek to end their pregnancies medically. Eight of its members perform abortions in Massachusetts.

Planned Parenthood has 876 health centers in 49 states, but not all of them perform abortions. In Massachusetts, the state affiliate provides abortion at its three centers in Boston, Springfield and Worcester.

The two new orders were issued within hours of each other, after the judges held expedited hearings on requests to stop the law as soon as possible. Except for the Nebraska doctors, the law had gone into effect at 12:01 a.m. yesterday, but the latest orders all but assured a nationwide barrier to enforcement for the time being.

Casey's ruling relied primarily upon the Supreme Court's decision in 2000 declaring unconstitutional a Nebraska state ban that was similar in many respects to the new federal ban. The highest court, the judge said, required that such a ban include an exception to protect women's health. Both the Nebraska law and the new federal one include exceptions to protect the life of a mother, but not her health.

The Supreme Court had said that a health exception was required because some doctors believe that the banned procedure would be the safest for their patients to undergo. Because of that requirement, Casey said that he had no choice but to conclude that the new ban was likely to be found unconstitutional at a trial.

In San Francisco, Hamilton found that the law would impose "an undue burden on a woman's right to choose."

The three orders that now stand in the way of enforcing the new federal ban are known as temporary restraining orders. They are designed to maintain the status quo until a court can weigh more fully the constitutional challenges, in cases where there is evidence that the law under attack would cause "irreparable harm" and was likely to be struck down ultimately.

The advocates of the new ban insist that it applies only to one particular and gruesome method of killing "a live fetus" after it has partially emerged from a pregnant woman's body during an abortion procedure. They refer to the procedure as "partial birth abortion," though physicians call it "intact dilation and extraction."

Critics of the ban, however, firmly insist that the law is written so broadly that it will actually ban the safest and most common abortion methods used in pregnancies after the first trimester.