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Wednesday, Dec. 17, 2003

The 6th U.S. Circuit Court of Appeals ruled 2-1 to reverse a lower court's ruling against the law, which had been challenged before it could take effect in August 2000.

U.S. District Judge Walter Rice of Dayton ruled in 2001 that Ohio's law was unconstitutional because it wouldn't allow partial-birth to be used when it is "safer" for a patient.

Abortion provider Dr. Martin Haskell, who sued three years ago to challenge Ohio's law, will appeal Wednesday's ruling, said his lawyer, Alphonse Gerhardstein.

Ohio Attorney General Jim Petro was pleased with the ruling, spokesman Mark Gribben said.

In February 2002, the Bush administration filed arguments in support of Ohio's law.

Puncture That Infant's Skull

Rice ruled that the law would not allow the dilation-and-extraction procedure to be used when it is safer for a patient than other alternatives. The procedure involves pulling the fetus partially out of the uterus feet first. The skull is then punctured and the brain suctioned out, causing the skull to collapse and easing passage through the birth canal.

Ohio had argued that its law contains an exception that would allow the procedure when necessary, in reasonable medical judgment, to preserve the mother's life or health.

But Rice said he found that argument "unpersuasive" because the procedure could be used only on patients who have conditions that would cause them irreversible harm if other abortion techniques were used.

Appeals judges James Ryan and Alice Batchelder said Ohio's law met standards set by the U.S. Supreme Court in June 2000 that allow doctors to use the abortion method when necessary to protect the mother's health.

The Supreme Court set the standards when it threw out a Nebraska law that banned dilation-and-extraction late-term abortions.

Another federal appeals court used the Supreme Court's 2000 ruling to review a state law. The 3rd U.S. Circuit Court of Appeals cited the ruling when it decided in July 2000 that a New Jersey law banning the procedure was unconstitutional.

Gerhardstein successfully argued against a similar Ohio law that Rice and the appeals court struck down six years ago. Gerhardstein said the appeals court's decision Wednesday ignores that case.

The courts, rejecting the earlier ban as unconstitutionally vague, argued that it could have been used to prohibit other legal abortion procedures. State lawyers said the current law was more narrowly defined to ban the objectionable procedure.

© 2003 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed.

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