Abortion resurfaces as wedge issue

Trials in three cities Monday challenge a ban on 'partial birth abortions,' while moves to criminalize harming a fetus gain.

In the 2004 campaign, gay marriage has dominated headlines as the hot new wedge issue. But an old standby, abortion, is never far from the news, as the highly motivated combatants on both sides of the debate renew their battle in Congress and the courts.

Monday, trials open in New York, San Francisco, and Nebraska, challenging the 2003 federal ban on so-called "partial-birth abortion." What's striking about these cases is that they come so soon after the US Supreme Court, in 2000, seemed to put the issue to rest by declaring a similar Nebraska law unconstitutional.

But the abortion battle is no ordinary policy dispute. And foes of abortion, outraged since abortion became legal 31 years ago, and their adversaries show no signs of letting up. No matter the outcome, the cases at trial Monday have the potential to reach the Supreme Court - which, by the time that could happen, may well have new justices and a different balance of thought on abortion.

For now, though, the federal abortion ban, plus a bill passed by the Senate last week that makes it a separate offense to kill or harm a fetus during commission of a federal crime, serve an important election-year purpose, analysts say.

"This has more to do with '04 politics and mobilizing the [Republican] base" than anything else, says David Garrow, a legal historian at Emory University in Atlanta.

For advocates of abortion rights, the trials and the newly passed Unborn Victims of Violence Act add impetus to a women's march on Washington scheduled for April 25 designed as a show of force in the battle over reproductive rights.

Another galvanizing development has been the Justice Department's attempt to obtain records from abortion providers as it seeks to show, in the three partial-birth abortion trials, that such a procedure is never medically necessary. Supporters of abortion rights argue that physicians should be free to use whatever technique they believe would best preserve the health of the mother.

The Justice Department sought redacted records - that is, with identifying information, such as the patient's name, address, and Social Security number, removed. On Friday, a federal appeals court rejected the demand for the records from a Chicago hospital, saying that even in edited form, their release could jeopardize the privacy of women who had had abortions there. Lower courts have issued conflicting rulings on the issue. The battle over medical records, though a sideshow to the abortion trials, has inflamed privacy advocates and furthered Attorney General John Ashcroft's aggressive image as he seeks both to enforce the federal partial-birth abortion ban (currently on hold as legal challenges work through the courts) and to fight the war on terrorism.

The core matter at issue Monday, the ban on partial-birth abortion, brings back for public discussion a variously defined, gruesome procedure that a majority of the public opposes. In general, it involves the partial delivery of a fetus before it is killed. When the Supreme Court struck down the Nebraska law in 2000, it did so on two grounds: The law provided no exception to protect the health of the pregnant woman; and the language of the law was too vague.

The plaintiffs in Monday's cases - the National Abortion Federation, the Planned Parenthood Federation of America, and several doctors - argue that the federal ban has the same problems, and could outlaw more common types of abortion performed as early as 13 weeks of pregnancy. "We see this as part of a larger agenda to ban all abortions," says Jennifer Dalven, deputy director of the American Civil Liberties Union's Reproductive Freedom Project.

The Justice Department argues that new findings of fact by Congress in its 2003 legislation address the objections raised by the Supreme Court in its 5-4 ruling in 2000. This new information, as well as the record of the case, will show that "partial birth abortion is never necessary to preserve the health of the mother," the Justice Department states in its brief for the Nebraska trial.

The Unborn Victims of Violence Act (UVVA), which has already passed the House and will be signed by President Bush, does not directly deal with abortion. But it has served as a surrogate over the issue in Congress, because the bill recognizes a fetus as a separate legal entity at any point of gestation.

As a matter of law, the UVVA is not likely to have wide-reaching impact, because it applies only when a fetus is harmed during a violent federal crime against the mother, such as an attack on federal land or a terrorist strike. The harming of a fetus during a crime has long been recognized in state law as a punishable offense; 29 states have laws protecting fetal rights, though not all cover the entire pregnancy.

Politically, the bill served the purpose of putting the Democrats' presumptive nominee, Sen. John Kerry, on record with his vote against the act. Mr. Kerry supported an amendment to the bill that would have imposed the same penalties as the bill that passed, but would not have recognized the fetus as a person and separate victim. That amendment was defeated 50-49. In the bill, a "child in utero" is defined as "a member of the species homo sapiens, at any stage of development, who is carried in the womb."

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