Ashcroft's latest ploy is based on the letter of the law ----

[Eileen]

Ashcroft's latest ploy is based on the letter of the law ---- but not the spirit of the law.- (See thread)Ashcroft: Abortion Records Needed -

This latest fishing expedition in his scheme to incrementally ban all abortions is based on the following facts.

• 
  - S3 - - the so called "Partial Birth Abortion" Ban - was passed and signed into law based on a claim that there was no need for an exception ever where the health of the woman seeking the abortion may be endangered by continuing the pregnancy and where this "Phantom Procedure" was the only solution.
• The definition of this Phantom Procedure used in S3 was so broadly written that it would clearly cover a number of abortion procedures used in the second trimester - including the D&E procedure most commonly used after approximately 14 weeks.
• The CRLP acting as agent for a number of physicians sought to enjoin S3 using the following arguments:

  
  3. The Act must be enjoined and declared unconstitutional because it suffers from the identical two flaws as the Nebraska statute struck down by this Court and by the United States Supreme Court in Stenberg v. Carhart, 530 U.S. 914 (2000), aff'g 11 F. Supp. 2d 1099 (D. Neb.1998). First, despite the Supreme Court' s clear mandate in Carhart, the Act fails to include any exception to the prohibition on abortion procedures " `where it is necessary, in appropriate medical judgment for the preservation of the . . . health of the mother.' " Id. at 931 (quoting Casey, 505 U.S. at 879).1 Thus, the Act prohibits physicians from exercising their professional medical discretion to determine the most appropriate procedure for their patients, and bars physicians from providing, and their patients from obtaining, the safest abortion possible.
  
  4. Second, the Act defines the term " partial-birth abortion" so broadly as to ban the safest and most common methods of abortion starting at least at the beginning of the second-trimester of pregnancy, including the Dilation and Evacuation (" D&E") method of abortion, and
  
  1 The Act also contains an inadequate exception to save the life of the woman. See infra at ¶¶ 20, 53.
  thus " imposes an undue burden on a woman' s ability" to choose abortion. Carhart, 530 U.S. at 930 (quoting Planned Parenthood v. Casey, 505 U.S. 833, 874 (1992)). Alternatively, the Act is so vague that it fails to give physicians fair warning of which abortion procedures are prohibited.
  
  5. Thus, the Act violates the rights of Plaintiffs and their patients to privacy, bodily integrity and autonomy, liberty, life, due process, and equal protection guaranteed by the Fifth Amendment of the United States Constitution. </BLOCKQUOTE>
  

  A - temporary injunction - was granted on the grounds that:

  The Supreme Court, citing the factual findings of eight different federal trial judges, (appointed by four different Presidents) and the considered opinion of the American College of Obstetricians and Gynecologists, has found a very similar law unconstitutional because it banned "partial birth abortions" without the requisite exception for the preservation of the health of the woman. Steinberg v. Carhart, 530 U.S. 914, 930-33 (2000). The law challenged here suffers from a similar vice. While it is also true that Congress found that a health exception is not needed, it is, at the very least, problematic whether I should defer to such a conclusion when the Supreme Court has found otherwise,"

  The injunction did not say anything about claims that the definition of a "partial-birth abortion" is so vague that it potentially bans several abortion methods and not only applies to "intact dilation and extraction" (D&X) abortions, but may also outlaw commonly accepted methods of abortion after the first trimester (such as dilation and evacuation or D&E, the most frequently used procedure and in fact the description in S3 clearly can be interpreted to apply to a D&E).

Ashcroft is now using the fact that one ground was sufficient to grant the injunction to attack that one ground - and in other words he is attempting to superimpose his own personal opinion and decision in place of a decision on a number of issues that are clearly the purview of the Supreme Court.

He is further trampling the rights of women to medical confidentiality by instituting a fishing expedition through medical records to find evidence of a procedure which - as it is described in S3 - could include any abortion performed after the first trimester.

This act, on Ashcroft's part, is judicial interference on an unprecedented level and it is clearly time to demand either his resignation or to take the needed actions to remove him from office.

- Eileen`s always in process page -

Eileen