U.S. district Judge Phyllis Hamilton said the so-called Partial-Birth Abortion Ban Act “poses an undue burden on a woman’s right to choose an abortion” by limiting procedures allowable in the second trimester of a pregnancy. The ruling was based on one of three lawsuits challenging the legislation.

Supporters of a woman’s right to choose welcomed the decision. Dian Harrison, president of Planned Parenthood in the San Francisco area, described it as “a victory for women’s health and the right to medical privacy.” The president of the National Organization for Women in San Francisco, Deborah Glenn-Rodgers, also applauded the outcome of the case, as did attorneys for the city government, which had sued in defense of the abortion services in its health system.

The case goes back to the end of last year. Immediately after Bush signed into law the misleadingly named Partial-Birth Abortion Ban Act on November 5, Planned Parenthood, a reproductive rights organization, helped initiate legal challenges to it in Nebraska, New York, and San Francisco.

In response, courts in all three states issued interim injunctions against the act. Judge Phyllis Hamilton’s ruling, which followed a three-week trial in March and April, is the first final decision.

In her ruling Hamilton noted that “the term ‘partial-birth abortion’ is neither recognized in the medical literature nor used by physicians who routinely perform second-trimester abortions”—that is, operations from the fourth to sixth months of pregnancy.

Properly called intact “dilation and extraction,” the procedure at issue involves the removal of the intact fetus from the woman. Opponents of a woman’s right to choose say that the fetus, which is incapable of independent existence, can briefly show signs of life and therefore is “partially born.”

Basing her ruling on the testimony of doctors, Hamilton pointed out that the procedure is a variant of—and in some ways is safer than—the most common form of second-trimester abortion, in which the fetus is not kept intact in the process of removal.

Because such a fetus may still have a heartbeat or show other signs of life, and thus “may be considered a ‘living fetus,’” she said, the law could be used to ban other abortion procedures.

Hamilton said the act violates a 2000 U.S. Supreme Court ruling on a similar law passed by the Nebraska state government in 1999. The court faulted the law for failing to allow the procedure when the woman’s life or health was in danger.

This was the basis on which Bush’s predecessor, President William Clinton, vetoed two such bills barring this abortion procedure. If a provision was included to make an exception for when the mother’s health was at risk, he would “happily sign the bill,” Clinton told sponsors of similar legislation in 1996.

Stephanie Cutter, a spokeswoman for presidential candidate John Kerry, said the Democratic senator supports restrictions on late-term abortions together with a “clear exception for life or health of women.”

On the other hand, she went on, “George Bush pushed through a different piece of legislation that failed to protect the health of women and that is what the court struck down today. When John Kerry is president he will appoint judges that are committed to upholding the Constitution, not pursuing an ideological agenda.”

Kerry told Associated Press reporters in May that while he supports the 1973 Roe v. Wade Supreme Court decision that decriminalized abortion, he would consider opponents of a woman’s right to choose in appointing lower court judges.

The San Francisco ruling is the latest episode in the ongoing battle over the right to abortion. Since the 1973 Supreme Court ruling, both Democratic and Republican politicians have passed legislation chipping away at access to abortion in a way that affects working-class women the most.

Today only 21 of 50 states provide any public funding for the procedure, and only 13 percent of counties have doctors who perform abortions. These attacks on a woman’s right to choose were a major reason for the turnout of hundreds of thousands of supporters of a woman’s right to choose at an April 25 march on Washington.

In a related development, the Food and Drug Administration decided in early May against making the Plan B emergency contraceptive available over the counter. The “morning-after” pill reduces the risk of pregnancy when taken within 120 hours of unprotected intercourse. It is available only by prescription, in spite of the fact that the sooner it is taken, the better it works.

“This is anti-choice politics at its worst,” said Planned Parenthood’s Dian Harrison May 6. Harrison pointed out that the FDA’s own advisory committee had voted to allow Plan B’s sale over the counter.  
 
 
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