Doctor takes issue with abortion law

updated 3:00 p.m. ET April 1, 2004

LINCOLN, Neb. - The doctor who led the fight to get the U.S. Supreme Court to strike down Nebraska’s ban on a controversial abortion procedure testified Thursday that a similar federal law would affect nearly all abortions.

“There are at least 21 different procedures that it covers,” Dr. LeRoy Carhart said during a court challenge of the Partial-Birth Abortion Ban Act, signed last year by President Bush. “There are terms in this act that I do not understand ... and that have many definitions.”

The law, which has yet to be enforced, would bar a procedure that medical organizations refer to as “intact dilation and extraction” — or D&X.

During the procedure, generally performed in the second trimester, a fetus is partially delivered and its skull is punctured.

Carhart and other abortion-rights supporters are challenging the ban, the first substantial limitation on abortion since the Supreme Court’s landmark Roe v. Wade decision legalized abortion 31 years ago.

The new law has not been enforced because judges in Lincoln, New York and San Francisco agreed to hear evidence in three separate, simultaneous trials without juries before deciding whether it violates the Constitution.

The law prohibits doctors from committing an “overt act” designed to kill a partially delivered fetus, which Carhart could be interpreted as covering more common, less controversial procedures, including “dilatation and evacuation.”

Known as D&E, it is the most common method of second-trimester abortion. An estimated 140,000 D&Es take place in the United States annually.

“This act covers every D&E that I did,” said Carhart, who performs about 1,400 abortions a year. “Everything that I do to cause an abortion is an overt act.”

Carhart said at least once a month, an entire fetus is expelled from the mother during a D&E he is performing.

“The fetuses are alive at the time of delivery,” he said. There is a heartbeat “very frequently,” he said.

Carhart earlier brought a challenge that eventually led to the Supreme Court in 2000 overturning Nebraska’s ban on D&X abortions. The high court said the Nebraska law and others like it were an “undue burden” on women’s rights.

Supporters of the federal ban argue that Congress wrote its law to take into account the court’s objections to the Nebraska statute.

U.S. District Judge Richard Kopf, who is presiding over the trial in Lincoln, also presided over Carhart’s challenge to the Nebraska ban.

The federal act carries a maximum two-year prison term for doctors convicted of performing the procedure. The issue is expected to reach the U.S. Supreme Court.

On Wednesday, Dr. Joel Howell, a medical historian at the University of Michigan, testified that surgical procedures like those done in abortions evolve over the years, leading to variations among doctors.

Carhart agreed.

“There are probably 100 different techniques being used” across the country, Carhart said. “Every doctor develops a protocol that’s best for them.”

In temporarily blocking enforcement of the federal ban last year, Kopf cited concerns that the law did not contain an exception for preserving the health of a woman seeking the abortion.

Congress declared that “a partial birth abortion is never necessary to preserve the health of a woman” and is “outside the standard of medical care.”

The American Medical Association does not encourage use of D&X but says it should not be banned. The College of Obstetricians and Gynecologists says there are usually alternatives to D&X, but that in some circumstances, it may be the best option.

An estimated 2,200 to 5,000 such abortions are performed annually in the United States, out of 1.3 million total abortions.

President Bush, meanwhile, was to sign legislation at the White House later Thursday expanding legal rights of fetuses.

The Unborn Victims of Violence Act, which took five years to get through Congress, makes it a crime to harm a fetus during an assault on a pregnant woman.

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