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U.S. Judges in Manhattan, Nebraska Block Ban on ‘Partial Birth Abortion’

By Susan Saulny

The New York Times -- A federal judge in Manhattan blocked the government’s new ban on certain abortions on Thursday, granting a temporary restraining order to a network of abortion providers who challenged the Partial Birth Abortion Ban Act as unconstitutional just moments after President Bush signed it into law on Wednesday.

The ruling is expected to have national implications because the group that filed the lawsuit, the National Abortion Federation, has clinics in almost every state and says it performs half of the abortions performed nationwide. In addition to the network, seven individual doctors joined the suit, which was brought with the assistance of the American Civil Liberties Union.

The decision follows a similar ruling from a federal district judge in Lincoln, Neb., which was the first to bar the law from taking affect. But that order was limited, so that it applied only to the four doctors who brought a lawsuit challenging the legislation’s constitutionality.

In contrast, the order signed Thursday will have a sweeping effect, because the NAF has 350 clinics across the country in 47 states, and, according to officials with the group, treats about 700,000 women a year.

Judge Richard Conway Casey of U.S. District Court in Manhattan wrote in a three-page order that the plaintiffs had succeeded in proving to him that they would suffer irreparable harm without an order restraining enforcement of the order. He also wrote that they would be likely to succeed in a lawsuit on the merits of their case.

Casey’s decision to issue a restraining order had much to do with the act’s exclusion of a clause that would allow exemptions for abortions when a woman’s health is at risk. In the order, he wrote that the government, at a hearing on Wednesday, had acknowledged that there was disagreement within the medical community as to whether the abortion procedures covered by the act were ever necessary to protect a woman’s health.

In addition, he wrote in his order that the Supreme Court had already declared unconstitutional a statute banning the procedure, known by its opponents as partial-birth abortion, that was similar to the new ban in that it did not contain an exception to protect a woman’s health. Casey wrote that in the first case, Sternberg v. Carhart, which was decided in 2000, the Supreme Court held that a health exception is constitutionally required.

“Given the defendant’s position,” he said, “the court is constrained, at this time, to conclude that it is substantially likely that plaintiffs will succeed on the merits. Therefore, it is ordered that: the application for a temporary restraining order is granted.”