Government says 9th Circuit judge made three errors in original ruling
By Josh Richman, STAFF WRITER
Inside Bay Area
12/21/2004 06:12 AM
A federal judge in San Francisco made three errors in striking down the federal partial-birth abortion ban earlier this year, the government claimed in its appeal brief Monday.
U.S. District Judge Phyllis Hamilton in June became the first of three federal judges - the others are in New York and Nebraska - to deem the 2003 law unconstitutional.
Hamilton ruled that the law puts an undue burden on women seeking second-trimester abortions to which they're constitutionally entitled; that the law is so vague that doctors might not know when they're violating it; and that it lacks a health exception as required by a 2000 U.S. Supreme Court ruling on a similar law.
But an 82-page brief filed Monday by the Justice Department to the 9th U.S. Circuit Court of Appeals claims Congress permissibly banned the procedure without providing a health exception because it had made a reasonable finding that such an exception isn't needed to preserve women's health.
Case law says reasonable factual disagreements must be resolved in favor of congressional findings "because Congress is best situated to make such findings and is entrusted by the Constitution to do so," the brief says.
It also argues Hamilton erred in concluding the law unduly burdens abortion rights.
Congress "narrowly and precisely defined the proscribed 'partial-birth' procedure" to make clear that it doesn't apply to other abortion methods, it says; the law also includes intent requirements so a doctor who intends to perform some other kind of abortion but ends up doing a "partial-birth" abortion instead is protected from prosecution.
And the brief claims Hamilton erred in concluding the law is unconstitutionally vague; the law precisely defines the banned method, the government claims.
The Planned Parenthood Federation of America and Planned Parenthood Golden Gate must file their answering brief by Jan. 19, and the government's optional reply brief is due two weeks later; oral arguments are likely to follow. The New York and Nebraska rulings also are being appealed.
Contact Josh Richman at jrichman@angnewspapers.com.
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