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Late-term abortion ban at issue in 3 lawsuits

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Late-term abortion ban faces legal test
George W. Bush
Family Planning
Supreme Court

(CNN) -- A challenge to a federal law banning a certain type of late-term abortion begins Monday in three states, including one where the U.S. Supreme Court struck down a similar state ban four years ago.

Lawsuits were filed in the fall on behalf of several abortion-advocacy organizations in federal court in three cities.

Opponents of the law say it could become the first step in a move toward abolishing abortion. Supporters say the law applies only to a specific procedure performed late in pregnancy.

Congress passed the bill -- dubbed the "Partial-Birth Abortion Act," using the nonmedical term that anti-abortion activists prefer for the procedure -- in October, and President Bush signed it into law in November.

The focus of all three trials -- in federal courts in New York; San Francisco, California; and Lincoln, Nebraska -- is expected to be on whether the procedure, called by doctors dilation and extraction (intact D&E), is ever medically necessary.

During the procedure, the fetus is partially removed and its skull collapsed.

The National Abortion Federation, Planned Parenthood Federation of America and a handful of doctors sued in the three cities to overturn the law.

The federal government contends that it is never necessary, refuting the Supreme Court's rejection of a Nebraska law in a 2000 decision.

Congress, in a lengthy section on findings in the text of the law passed in the fall, described the procedure in vividly disturbing language and labeled the Supreme Court's findings in the Nebraska case "clearly erroneous."

Congress said in its findings that the ban would "advance the health interests of pregnant women seeking to terminate a pregnancy."

The Supreme Court also hung its decision in Stenberg v. Carhart on the Nebraska law's definition of "partial-birth abortion," saying that it could spur prosecutors to pursue doctors who use the procedure for earlier -- and currently legal -- abortions.

The federal law adds some detail, but the National Abortion Federation said it is not enough to stop a prosecutor from possibly using the new law to chip away further at the landmark 1973 Roe v. Wade decision.

Law's merits debated in New York

In court in New York on Monday, an attorney for the plaintiffs said the federal law fails to stand on four points: that it lacks an exception to preserve the health of the woman; that the term "partial-birth abortion" is imprecise; that it infringes on a woman's right to choose; and that the government has no compelling interest in the case.

"In its stunning breadth, it would -- and frankly seems intended to -- remove the range of abortion alternatives available to women in the second trimester," said Stephen Hut in his opening statement.

"The act is unconstitutionally vague for it fails to give providers a guide for action," Hut added.

Assistant U.S. Attorney Sean Lane argued that safe alternatives exist and that the procedure is "never necessary for maternal health and has no proven safety advantages"

"It is an inhumane and gruesome procedure that inflicts severe pain to the fetus," he said.

The two sides also are battling over whether hospitals should be compelled to release medical records the government says it requested to bolster its case that such late-term abortions are never necessary for a woman's health.

The government requested records from several cities, with mixed results -- in some, including New York, judges ordered hospitals to comply, but others cited privacy issues in ruling for the hospitals.

The cases that begin Monday are National Abortion Federation v. Ashcroft, before Judge Richard Casey in New York; Carhart v. Ashcroft, before Judge Richard Kopf in Nebraska; and PPFA v. Ashcroft, before Judge Phyllis Hamilton in California. All three judges blocked implementation of the law in their jurisdictions.

The trials are expected to last at least two weeks.

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