Saturday, September 23, 2000
Abortion restriction blocked
Late-term ban will await trial
The Associated Press and The Cincinnati Enquirer
DAYTON, Ohio — A federal judge on Friday refused to allow Ohio's ban on a late-term abortion procedure to go into effect and said it is likely the new law is unconstitutional.
The procedure, known medically as dilation and extraction, involves draining the skull of a fetus before it is fully removed from the uterus. Opponents refer to the procedure as partial- birth abortion.
Judge Walter Rice earlier had temporarily blocked enforcement of the law. Friday's decision will keep it from going into effect until a trial or action by an appeals court. The law had been scheduled to go into effect Aug. 18.
Judge Rice said the law probably is unconstitutional because it would not allow the procedure to be performed when it is safer than other methods of abortion. He said the law would not allow women to have the procedure when they have serious physical or mental problems and the procedure would be the safest even if it were not absolutely necessary.
Joe Case, director of public affairs for the Ohio Attor ney General's Office, said while the ruling was not in the state's favor, it was a small moral victory.
“We've got the judge to agree that the law only applies to the (dilation and extraction) procedure,” he said.
One problem with a similar Nebraska law that the U.S. Supreme Court struck down was that it was too broad.
A physician who operates clinics in Clifton, Dayton and Akron filed a lawsuit challenging the new law. Dr. Martin Haskell, owner of Women's Medical Professional Corp., says the law would impose an undue burden on access to abortion.
The state says the law protects unborn children.
Al Gerhardstein, Dr. Haskell's attorney, said the judge agreed with the lawsuit's prevailing argument.
“Ohio cannot ban it (the procedure) in a way that keeps it unavailable to women,” he said. “We're pleased he saw that so clearly.”
The ruling left his client, Dr. Haskell, relieved, Mr. Gerhardstein said.
“His clinics have procedures scheduled every weekday and this will allow them to continue without prosecution,” he said. “And that's very important for women in this state.”
The law makes the procedure a crime unless the mother's life or health is threatened by the pregnancy. It carries penalties of up to eight years in prison and a maximum fine of $15,000 to those who perform the procedure.
“Without a preliminary injunction, physicians such as plaintiff Haskell would face the possibility of criminal prosecution and civil liability which may effectively chill their practice of medicine to such an extent that would rely on methods of abortion that are riskier to their patients,” Judge Rice wrote in his ruling.
Dr. Haskell persuaded Judge Rice in 1995 to reject Ohio's first ban as unconstitutional. The 6th U.S. Circuit Court of Appeals upheld that decision, and the U.S. Supreme Court declined to hear the case.
State officials say the latest ban is designed to satisfy state and federal courts and to comply with criticisms from various federal courts that similar laws were too vague.
A conference call is scheduled for Sept. 28 for all parties involved to see what the next step will be.
“This is a preliminary decision by the judge,” Mr. Case said. “It is not a final decision on the merits of the law.”
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