Abortion Rights Fights In 3 States

Even before President Bush signed a bill into law in November outlawing a type of late-term abortion, opponents took the unusual step of filing three federal lawsuits seeking to block it.

Those lawsuits were expected to be heard Monday in a trio of courtrooms stretching from coast to coast as abortion-rights supporters challenge the first substantial limitation on abortion since the Supreme Court's landmark Roe v. Wade decision.

The simultaneous litigation centers on the ban on what lawmakers defined as "partial-birth" abortion and what doctors call "intact dilation and extraction" - or D&X.

In the outlawed procedure, generally performed in the second trimester and occasionally in the third, a fetus is partially delivered before being killed, usually by puncturing its skull. An estimated 2,200 to 5,000 such abortions are performed annually in the United States, out of 1.3 million total abortions.

The National Abortion Federation, Planned Parenthood Federation of America and a handful of doctors sued in San Francisco, New York and Lincoln, Neb., to overturn the law.

Critics of the law say its language could criminalize more common types of abortion and could be a step toward abolishing abortion. Supporters contend it applies only to a procedure done late in pregnancy that is never necessary to protect the health of the mother.

The Partial-Birth Abortion Act carries a maximum two-year prison term for doctors convicted of performing the procedure, but it has been put on hold pending the outcome of the litigation, which appears likely to reach the Supreme Court.

The Supreme Court struck down a similar Nebraska law almost four years ago because it lacked an exception for procedures done to preserve a woman's health. Anticipating this problem, 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 abortion groups disagree, saying that doctors may find themselves with no good alternative to the banned procedure to protect a woman's life or health if problems develop.

"The real question in all of these lawsuits is whether the law Congress passed is different from the Nebraska law that the US Supreme Court rejected a few years ago," says CBS News Legal Analyst Andrew Cohen. "If the federal statute is deemed different enough, it'll be upheld. If not, it won't."

"This is going to be one of those cases that gets decided based upon which sides' expert witnesses are more persuasive," says Cohen, adding that the question could wind up before the U.S. Supreme Court. "The key factual question is whether the procedure ever is necessary to save the life of the woman involved. If these courts deem it is. I think the law likely will be struck down."

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 alternatives to D&X usually exist, but that in some circumstances it may be the best procedure.

Opponents of the ban also argue that the language in the federal legislation is vague and could be interpreted as covering more common, less controversial procedures, including "dilation 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.

Lawyers for the government will defend the law and the work of Congress, which passed the ban and sent it to President Bush's desk.

The government's efforts to prove that the banned procedure is never necessary sparked a separate controversy over medical privacy. To support its argument, the government sought records from abortion providers.

While Planned Parenthood and other doctors and groups involved in the suit called the request an invasion of privacy, the government demanded the records - absent patient's names - in hopes of answering the central claim by the bill's opponents that the procedure is sometimes medically necessary.

A federal district judge in Manhattan ruled that New York-Presbyterian Hospital must comply, and a judge in Michigan issued a similar ruling.

But U.S. District Judge Phyllis Hamilton, who is presiding over the latest San Francisco litigation, ruled that medical records from another hospital must remain private, as did a federal judge in Philadelphia. On Friday, the 7th U.S. Circuit Court of Appeals upheld an lower-court order blocking release of records from a Chicago hospital.