The New York Times

Thursday, October 28, 1999

Abortion Rights in Peril

This week's federal appeals court decision upholding statutory bans on so-called partial birth abortion in Illinois and Wisconsin is a serious assault on the reproductive freedom guaranteed women under Roe v. Wade. The sharply divided 5-to-4 opinion by the Court of Appeals for the Seventh Circuit conflicts with the decision only last month by the Eighth Circuit Court of Appeals striking down similar bans in Nebraska, Arkansas and Iowa. Thus the stage seems to be set for a Supreme Court showdown on the roiling partial birth issue. Surely the nation's top court cannot stand aloof when an anti-abortion statute similar to one found unconstitutionally vague and burdensome in Iowa is narrowly upheld weeks later in neighboring Wisconsin, posing a threat to doctors of life imprisonment.

Although billed as narrow prohibitions of a rare late-term abortion procedure, the proliferating partial birth laws all contain language that could be read to forbid the abortion procedures most commonly used before fetal viability, the period in which the Supreme Court has held that abortions are protected by the Constitution.

To navigate around this problem, the Seventh Circuit majority resorted to gimmickry. First it declared that the laws were not unconstitutionally vague. Then, in a contradictory move, it issued "precautionary" injunctions to forbid enforcement of the statutes outside what the majority defined as their core prohibition until state courts have a chance to clarify the statutes through criminal prosecutions.

Moreover, in dismissing arguments that the bans place an undue burden on women's right to choose abortion, the majority brushed aside reputable medical testimony about the need for a health exception. They also ignored the real-world impact of the statutes in deterring physicians from performing abortion procedures that the majority concede are constitutionally protected. In an impassioned dissent, the circuit's chief judge, Richard Posner, a Reagan appointee, wrote, "What physician would be fool enough or hero enough to risk a criminal prosecution in order to explore the precise meaning" of the broadly worded ban?

The profoundly flawed Seventh Circuit decision has at least crystallized the idea that this fight is about far more than a single late-term abortion procedure. It is about the continuing vitality of the Supreme Court's wise decision in Roe to keep politicians from interfering with what should remain women's private medical decisions.