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MARGARET WARNER: When President Bush signed a law last November banning a procedure that opponents call partial-birth abortion, it was clear the legislation would be challenged in court.
PRESIDENT GEORGE W. BUSH: The American people and our government have confronted the violence and come to the defense of the innocent child. And the executive branch will vigorously defend this law against any who would try to overturn it in the courts.
MARGARET WARNER: The law, which bars doctors from committing an “overt act” designed to “kill a partially delivered fetus” is aimed at a procedure sometimes used to end pregnancies after the first trimester called intact dilation and extraction.
Federal courts in New York, San Francisco and Lincoln, Neb., today heard legal challenges to the ban. Judges in all three states have temporarily blocked enforcement of the law. The cases were brought by several groups, including the Center for Reproductive Rights, Planned Parenthood and the National Abortion Federation, as well as individual doctors from hospitals nationwide. The defendant in all three cases: Attorney General John Ashcroft. In preparation for today’s hearings, his Justice Department demanded that six hospitals turn over the medical records of patients who’ve had the procedure.
JOHN ASHCROFT: We sought from the judge authority to get medical records to find out whether indeed the allegation by the plaintiffs that it’s medically necessary, is really a fact.
MARGARET WARNER: So far, only one federal judge in New York, has upheld his request. Today’s court hearings come on the heels of another setback for abortion rights advocates: Last week’s Senate approval of a bill making it an offense to harm a fetus while committing a federal crime.
SPOKESMAN: The bill is passed.
SEN. DIANNE FEINSTEIN: If this result is incorporated in law, it will be the first step in removing a woman’s right to choice.
MARGARET WARNER: President Bush strongly supported the bill, and is expected to sign it.
MARGARET WARNER: With us to discuss today’s challenges to the partial-birth abortion law are: Gloria Feldt, president of Planned Parenthood Federation of America, one of the plaintiffs in the San Francisco case, and Jay Sekulow, chief counsel for the American Center for Law and Justice. It plans to file an amicus brief in support of the government in the New York case.
Welcome to you both.
Gloria Feldt, and you the other plaintiffs are challenging this law as unconstitutional. In what way is it unconstitutional?
GLORIA FELDT: Yes. The stakes are so high, every woman’s right to choose and frankly at this point every American’s right to medical privacy are under attack. We’re challenging the law, this federal abortion ban, because it has no exception to protect the health of the woman. And because it outlaws a broad range of techniques that doctors use, even as early as the beginning of the second trimester, 12, 13, 14 weeks, in order to be able to provide the best health care for their patient. It’s also part of a larger agenda, to outlaw all abortions.
MARGARET WARNER: Well, let me try to stay on the constitutional argument for a minute. Mr. Sekulow, the Supreme Court overturned a Nebraska law that was similarly worded about four years ago on these grounds, one being overly broad, that is seeming to include other procedures, and secondly the question about no exception for the health of the mother. Why would this law be constitutional in your view?
JAY SEKULOW: Well, this is a very different bill. The legislation that was passed with wide bipartisan important and signed by President Bush outlaws a very specific procedure. There’s no dispute as to what this procedure is. And there were some question in the Nebraska case as to the extent of the actual prohibition.
Here it’s very specific. I’ve been in court and working in supporting the Justice Department in their position, and let me just say what the lawyer for the National Abortion Federation said in court today before Judge Casey. He said, in explaining the evidence he said Judge Casey, frankly, the evidence you’re going to see is discomforting, it’s gruesome, some of it is hard to handle. And that’s because the procedure itself is. We’re going to be able to establish that this procedure is not medically necessary for the health of the mother, that exception that has been asked for, we’re also going to establish that it’s a very specific procedure that’s being prohibited here.
Interestingly, the case that I’m heavily involved in in New York is handled in the U.S. district courthouse named for former Senator Moynihan. When this bill came up, he rarely voted in a pro-life way, but in this particular case he did agree that this was a particular ban that should be eliminated. He said it was tantamount to infanticide. What you have is a situation where this procedure blurs the line between live birth and abortion. When that’s the case, you have to side on the side of life.
MARGARET WARNER: Miss Feldt, tell us about the hearing today in San Francisco, because you were there for that.
GLORIA FELDT: Yes. It was extraordinary. And the testimony that we heard today in San Francisco completely counteracts what Jay Sekulow has said. As a matter of fact, there is no the procedure. This law, and this is what we heard in the court today, this law would keep a doctor from being able to utilize a wise range of methods that they want to use to be able to protect the health and the life of their patients.
And one doctor, for example, I think in a very powerful statement said, you know, it feels like there’s an elephant in the room and that elephant is basically the politicians who are looking over my shoulder and trying to tell me what I should do in the interest of my patient. I would be faced, she said, with having to make a decision about whether to do what I think is best for my patient and become a criminal, or not. And I think that’s a choice that no doctor should have to make, and certainly no woman’s health or life should be put at risk by politicians who have no business practicing medicine.
And if I may just add, that there is almost no change between this law and the previous law that was ruled unconstitutional by the United States Supreme Court. But I believe that the strategy of this administration is that their hope is that by the time this challenge reaches the United States Supreme Court, there will be a different Supreme Court, a Supreme Court that will be more willing to outlaw a woman’s fundamental human right to make her own child bearing decisions. These are the most personal and private decisions that any woman ever makes in her life. These are incredibly important. It’s not for the politicians to make either for the woman or for the doctor.
MARGARET WARNER: Mr. Sekulow, is there part of the strategy here or has this question about the health of the mother, did the law also seek to address that? That was the other basis of the Supreme Court’s last ruling.
JAY SEKULOW: I represent members of Congress that supported and put this bill forward and I will tell you that there was eight years of hearings and testimony concerning whether there was a medical necessity for this procedure. And in that particular hearing that took place before the House and Senate, the Congress was convinced that there was not a medical necessity and there will be experts testifying to that fact. (All talking) …Excuse me, please. The American Gynecologist Association today in New York refused to testify. Judge Casey was quite disturbed by the fact that the representatives from the College of Gynecology refused to appear in court to be examined. They have issued a general statement, of course the AMA has a contrary statement, they passed a resolution saying that this procedure was not medically necessary — but the author…
MARGARET WARNER: Let me ask Mr. Sekulow, so this issue of medically necessary, that is what medically necessary for what, to save the health of the mother?
JAY SEKULOW: There is a life exception in the law, in other words if the life of the mother is in jeopardy there’s an exception, but it’s a health exception. And, of course, the problem we have in a case like this with a health exception is they’re so broad that they make the prohibition or the restrictions meaningless. But we have the burden of establishing is that there is not a medical necessity, we’ve got experts that will testify to that.
MARGARET WARNER: And Ms. Feldt, can your side demonstrate that in fact there are cases in which it is medically necessary to preserve the health of the mother for this procedure to be used?
GLORIA FELDT: Our side can demonstrate unequivocally that it is absolutely medically necessary for physicians to be able to make that judgment. This law has no exception to protect the health of the woman. It has, it affects a wide range of different techniques that doctors use. And it’s doctors who need to be able to make that decision.
Jay Sekulow is not a doctor, I am not a doctor, President Bush is not a doctor. There are very few members of Congress who are doctors. It’s the doctor who ought to be able to make that judgment call. Every woman is different, every situation is different. These are personal and private and medical issues, and the larger agenda here is to outlaw all abortion for all women at any time during pregnancy. Jay, you need to just be honest about that.
JAY SEKULOW: Let me tell what you the case is about. The case is about a prohibition on a procedure that’s quite specific, a prohibition on a procedure that allows for, right now, the procedure can take place it at allowing for late term abortion, Dr. Haskell, the originator of it, says he does them in the third trimester, think about that for a moment — live babies being born –
GLORIA FELDT: That is not true.
MARGARET WARNER: Okay. Can I interrupt you both, let’s get back to the legal argument if we could. Mr. Sekulow, the courtroom where you were today is the one where in fact Attorney General Ashcroft demanding these medical records was permitted to get them. Were they introduced as evidence?
JAY SEKULOW: No, they weren’t today. In fact that’s put a little bit of a scheduling issue in this particular trial, because Judge Casey did order that the records that were requested by the attorney general be released without the names of the woman, without any identification of who the woman involved in these procedures are. But that has been stayed pending an appeal by the second circuit which is being handled hopefully on an expedited basis right now sometime in April, but it may be sooner. So that information has not yet been made available, although interestingly here in New York Judge Casey said that evidence should be a admitted, after all it was the National Abortion Federation that said this procedure is medically necessary and these individual doctors and then show the evidence as to why it’s medically necessary. I suspect that they don’t want that to happen.
MARGARET WARNER: Miss Feldt, in San Francisco I gather that isn’t an issue in the San Francisco case. But why does your side, Miss Feldt, object to obtaining these records with the names of the women redacted, eliminated, to demonstrate that in fact your point is correct, that the doctors didn’t have a choice to protect the health of the mother?
GLORIA FELDT: The judge in San Francisco agreed with our contentions and they were two-fold. First, that what the Justice Department tried to do was the most sweeping invasion of medical privacy that we have ever seen in this country, and that they were requesting records, very broadly, they started out asking for 9,000 records from Planned Parenthood affiliates all over the country, and we just said no. They whittled that down to 900 from six affiliates, but we still said no, because it was just wrong. It was inappropriate, and the second point is, tells you why it was inappropriate and it’s that they do not need these records in order to prove their case. This is about medical evidence that is best provided by the physicians who are experts in this case.
We have physicians, in fact, on both sides of this case who are talking about the research, the various clinical research that has been done, the evidence that they have, the peer reviewed and not peer reviewed studies, that’s what they need to do. And our judge in San Francisco agreed with the contention that the Justice Department simply does not need these records in order to be able to make their case. They’re irrelevant.
MARGARET WARNER: This is the first of many, many days in court on this I’m sure. Gloria Feldt and Jay Sekulow, thank you both.
JAY SEKULOW: Thank you.
GLORIA FELDT: Thank you.