Late-term abortion issue likely bound for U.S. Supreme Court October 27, 1999

Source: CHICAGO (AP)

- A sharply divided federal appeals court has upheld Illinois and Wisconsin laws banning some late-term abortions, a decision experts predicted will wind up before the U.S. Supreme Court. In a 5-4 decision Tuesday, the U.S. 7th Circuit Court of Appeals ruled that laws in both states banning a procedure critics describe as "partial-birth abortion" are constitutional. "This decision creates a constitutional crisis which will probably go to the Supreme Court," said Janet Benshoof, president of the New York-based Center for Reproductive Law and Policy. The center, which advocates abortion rights, says 30 states have passed similar laws, and 20 states have been barred or sharply restricted by courts from enforcing them. Douglas Johnson, legislative director for the anti-abortion National Right to Life Committee, told The New York Times the issue was now likely to receive high court review, "perhaps next year." The decision reversed a ruling by a federal judge in Chicago that held the Illinois law unconstitutional as well as an appeals panel's order that temporarily halted enforcement of the Wisconsin statute. "We conclude that both laws can be enforced in a constitutional manner," Judge Frank Easterbrook wrote for the majority. The opinion acknowledged the laws could be wrongly applied by local authorities, but other laws could prevent that. Neither law has been enforced pending court challenges. The procedure in question is known medically as a "dilation and extraction." It involves reducing the size of the fetus' skull as part of the process of removing it. The court said reducing the skull "causes the adverse public (and legislative) reaction" to the procedure. Writing for the minority, Chief Judge Richard Posner said the decision represented a compromise between the desire to ban the procedure and the fear that the states' laws would be applied to procedures they were not meant to address. He said "the court does throw a bone to" those seeking to lift the bans by ordering lower courts to limit how they may be enforced. Anti-abortion groups were elated by the decision after losing a round last month when a federal appeals court in St. Louis struck down similar laws in Nebraska, Arkansas and Iowa. Susan Armacost, a lobbyist for Wisconsin Right to Life Inc., said the decision represents "a huge victory for the babies of Wisconsin." Wisconsin Gov. Tommy Thompson called the procedure "a gruesome, abhorrent way to take a life," and said there is "no place" for it in his state. Nebraska Deputy Attorney General Steve Grasz said the Illinois decision heightens chances that his state's case will be the first major abortion case heard by the U.S. Supreme Court since it upheld the Roe vs. Wade decision in 1992. Grasz said Nebraska will petition the court to consider its case. The Wisconsin law, enacted last year, provides for life in prison for anyone performing the procedure except to save the mother's life. The 1997 Illinois law calls for a three-year prison term.