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Partial-birth abortion restraining order extended through March trial

September 22, 1999
By: Michael Patrick Carney
State Capital Bureau
Links: HB 427

JEFFERSON CITY - A six month delay in the enforcement of a ban on partial-birth abortion met with the support of legislators who led last week's fight to override Gov. Mel Carnahan's veto.

Jordan Cherrick, a St. Louis attorney appointed to represent the state during legal challenges to the new law, consented to the delay. Without his consent, a preliminary hearing would have been required.

"We continued to oppose the temporary restraining order today," Cherrick said, but decided "this was the most efficient way for us to present our defense and save the taxpayers money at the same time."

The restraining order was extended during a Wednesday morning conference call with Planned Parenthood's lawyers and U.S. District Judge Scott Wright.

Wright had issued a temporary restraining order Friday, within twenty-four hours of the law taking effect, that ordered the state to suspend enforcement. Wednesday's order continues that suspension through a March 2000 trial.

Abortion-rights supporters were pleased.

"It's very good news," said Dara Klassel, a New York-based lawyer for Planned Parenthood. "It means that we can go on providing abortions."

Planned Parenthood had stopped performing abortions in Missouri after the law took effect.

Another of the group's lawyers, Arthur Benson, explained the state avoided the cost of holding a "mini-trial in the next ten days or so" by consenting to an extended restraining order.

After an initial objection, Cherrick backed down and agreed that the injunction should remain in place until the trial in March, Benson said.

"We agreed to the six month time line in order to give us time to prepare our case," said the bill's sponsor, Rep. Bill Luetkenhaus, D-Josephville. "We are excited that we will be given ample time to present our case."

Leutkenhaus said he is being kept informed about the case, but did not speak with Cherrick Wednesday.

Sen. Ted House, D-St. Charles, characterized the delay as "standard-operating procedure" in abortion cases and said that it will only bolster the state's case.

Abortion providers are challenging the new law as being unconstitutionally vague. They say that the legislature has banned many routine abortion procedures, in addition to the procedure known as partial-birth abortion.

"Our position is that if the state is not permitted to ban infanticide then what powers does the state have?" Cherrick said.

"There is no irreparable harm to Planned Parenthood," Cherrick said, and it is on that basis that the state will argue for the constitutionality of the ban.

Planned Parenthood's Klassel is a 20-year veteran of abortion litigation and served as co-counsel in a 1980s case heard by Wright.

That case, Reproductive Health Services vs. Webster, eventually made its way to the U.S. Supreme Court. This history prompted some critics to charge that, by picking a court with a one-in-four chance of getting Wright, the abortion-rights supporters were "judge shopping."

"They got a judge that was certainly supportive of abortion," Luetkenhaus said. "The track record shows that 100 percent of the time he has struck down abortion legislation, but 75 percent of the time he has been wrong and overturned by higher courts."

"We are encouraged by that," Luetkenhaus said.

Klassel denied any ulterior motives in choosing Wright's court.

"It is a perfectly legitimate place to file this lawsuit," she said.

Sen. Peter Kinder, R-Cape Girardeau, said he is concerned that "Judge Wright--being a liberal Democratic appointee--would give [Planned Parenthood] everything that they asked for."