By Dan Horn
The Cincinnati Enquirer
Ohio's ban on a controversial late-term abortion procedure is constitutional, a federal appeals court ruled Wednesday.
The procedure, known to opponents as "partial birth" abortion, was banned under an Ohio law passed three years ago. The law has never been enforced, however, because opponents won a legal challenge in federal court in 2001.
In a 2-1 decision Wednesday, a panel of the U.S. 6th Circuit Court of Appeals overturned the lower court's ruling and declared that the law does not violate a woman's constitutional right to obtain an abortion.
Judges James Ryan and Alice Batchelder concluded the law is acceptable because it allows the procedure if the woman's health is in jeopardy.
Despite the ruling, Ohio's law is not expected to be enforceable until the appeals process is resolved. The next step could be an appeal to the full 6th Circuit or to the U.S. Supreme Court.
Abortion foes described the ruling as a victory and said the Ohio case is being watched as a model for similar bans in other states.
"We're very pleased the court recognized the importance of drawing a line in the sand," said Denise Mackura, executive director of Ohio Right to Life.
Abortion rights activists said the ruling Wednesday is a threat to the future of safe and legal abortions. "This law dangerously interferes with physicians' ability to care for their patients," the American Civil Liberties Union said in a statement.
Martin Haskell, the Dayton-based doctor who challenged the law, claims Ohio's ban is unconstitutional because the procedure may be the safest method of abortion in some cases, even if the mother's health is not clearly in jeopardy.
"When the procedure is the safest procedure, it should be available," said Haskell's attorney, Jennifer Branch.
Haskell, who has clinics in Dayton and Cincinnati, is one of a handful of doctors in the state who perform the controversial dilation-and-extraction procedure.
Opponents call the procedure "partial-birth" abortion because it involves pulling the fetus partly out of the uterus feet first. The skull is then punctured, the skull collapsed and the brain suctioned out.
Ohio's ban is the second approved by the state legislature since 1997. The first was ruled unconstitutional because it did not include an exception if the mother's health was in danger.
Three years later, the authors of the new law included a health exception in hopes of overcoming the same legal challenges.
The state lost the first round of court challenges in 2001 when U.S. District Judge Walter Rice concluded the law still was too restrictive.
But in the decision Wednesday, the two Appeals Court judges said the law is now flexible enough to pass constitutional muster. Judge Arthur Tarnow dissented, arguing that the restrictions limited access to a safe procedure.
The decision came just weeks after President Bush signed into law a federal ban on the same procedure. That law already has been challenged and is expected to face a legal fight because it includes no health exception.
"The Supreme Court has said that partial-birth bans have to have a health exception," said Mark Gribben, spokesman for Ohio Attorney General Jim Petro, whose office defended the state's ban. "I think the federal government is going to have a difficult time convincing a court to reverse a longstanding tradition."
No matter what happens to the federal law, the fate of the Ohio law will likely have more impact on abortion in this state. The federal law would apply only to clinics or institutions that receive federal money.
Branch said she will decide soon whether to appeal Wednesday's decision to the full circuit court or to the Supreme Court.
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