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Court Nixes NJ Abortion Law

Christopher McCowen sits the courtroom Wednesday, Nov. 15, 2006, in Barnstable, Mass. McCowen was convicted for the murder of Christa Worthington.
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A federal court Wednesday struck down a New Jersey state law banning late-term abortions.

In the case, which pitted a Planned Parenthood chapter against the New Jersey legislature, the United States Court of Appeals for the Third Circuit affirmed an earlier District Court ruling that threw out the New Jersey Partial-Birth Abortion Ban Act of 1997.

The circuit court decision cites a late June U.S. Supreme Court ruling on a Nebraska law that the Circuit Court said was "nearly identical to the one before this court."

When the legislature passed the law in 1997, Gov. Christie Whitman authored a conditional veto in which she suggested that lawmakers rewrite it, but that was overruled.

Planned Parenthood and several doctors filed suit the day the law was to take effect. Sharing Whitman's objections to the law, the state attorney general opted not to defend the law, so the legislature hired a private attorney to make its case.

The District Court approved an injunction stopping enforcement of the law in December 1997.

The act prohibits "an abortion in which the person performing the abortion partially vaginally delivers a living human fetus before killing the fetus and completing the delivery."

It makes an exception when the mother's life is in danger.

Unlike similar statutes in other states, the law imposes civil—not criminal—punishments for violating it, including loss of license for physicians who perform the banned procedures.

In its Wednesday ruling, the Circuit Court reiterated much of what the District Court had found.

The court ruled that the act was vague in describing what procedure it prohibited. The legislature had argued that the law was clear enough if construed narrowly, but the court's ruling said that when "a statute is so nonspecific as to create uncertainty regarding the exercise of a constitutionally protected right, such as a woman's right to abortion, a higher degree of clarity is required."

Even the definition of "living human fetus" was deemed too vague by the court.

The court also found that the law created an undue burden for women because, "the language of the Act is so broad that it covers many conventional methods of abortion."

"That's what we expected, especially in light of the Supreme Court decision," said Phyllis Kinsler, president and CEO of Planned Parenthood of Central New Jersey, of the ruling.

Whitman's conditional veto suggested the law exclude only "post-viability" abortions, with exceptions when the health of the mother is in danger.

Kinsler said if New Jersey passed such a narrowed law, her group would not oppose it because it would be in line with the 1973 Roe v. Wade Supreme Court ruling legalizing abortion, and because no New Jersey doctor currently performs abortions later than the second trimeter.

The attorney for the legislature, Richard Collier, was out of the office Wednesday.

By JARRETT MURPHY