Court OKs law banning type of late-term abortion

CINCINNATI -- An Ohio law that bans a controversial late-term abortion procedure is constitutionally acceptable and the state can enforce it, a federal appeals court ruled Wednesday.

The 6th U.S. Circuit Court of Appeals ruled 2-1 to reverse a lower court's ruling against the law, which had been challenged before it could take effect in August 2000.

U.S. District Judge Walter Rice of Dayton ruled in 2001 that Ohio's law was unconstitutional because it wouldn't allow the procedure, called partial-birth abortion by opponents, to be used when it is safer for a patient.

Abortion provider Dr. Martin Haskell, who sued three years ago to challenge Ohio's law, will appeal Wednesday's ruling, said his lawyer, Alphonse Gerhardstein. Haskell hadn't decided whether to ask the full appeals court to reconsider the case or ask the U.S. Supreme Court to review it.

Ohio Attorney General Jim Petro was pleased with the ruling, spokesman Mark Gribben said.

In February 2002, the Bush administration filed arguments in support of Ohio's law.

Rice had ruled that the law would not allow the dilation-and- extraction procedure to be used when it is safer for a patient than other alternatives. The procedure involves pulling the fetus partially out of the uterus feet first. The skull is then punctured and the brain suctioned out, causing the skull to collapse and easing passage through the birth canal.

Appeals judges James Ryan and Alice Batchelder said Ohio's law meets standards set by the U.S. Supreme Court in June 2000 that allow doctors to use the abortion method when necessary to protect the mother's health.

The Supreme Court set the standards when it threw out a Nebraska law that banned dilation-and-extraction late-term abortions.

Rice had called the Ohio law's exception for the mother's health "unpersuasive," saying it allowed the procedure to be used only on patients who have conditions that would cause them irreversible harm if other abortion techniques were used. In his dissent, appeals Judge Arthur Tarnow said he agreed with Rice's ruling.

Another federal appeals court also used the Supreme Court's 2000 ruling to review a state law. The 3rd U.S. Circuit Court of Appeals cited the ruling when it decided in July 2000 that a New Jersey law banning the procedure was unconstitutional.

Gerhardstein successfully argued against a similar Ohio law that Rice and the appeals court struck down six years ago. Gerhardstein said the appeals court's decision Wednesday ignores that case.

The courts rejected the earlier ban as unconstitutionally vague, arguing that it could have been used to prohibit other legal abortion procedures. State lawyers said the current law was more narrowly defined to ban the objectionable procedure.

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