Posted: June 17, 2003


By Celia Cohen

Grapevine Political Writer

Attorney General M. Jane Brady still may fight a federal judge's ruling from last week against a 24-hour waiting period for abortions, even though a Cabinet secretary has said the decision shouldn't be appealed.

Administrative Services Secretary Gloria W. Homer, whose department is Brady's client,  not only believes the case should be dropped now but has been making that same point since an earlier ruling by U.S. District Chief Judge Sue L. Robinson in March went against the 24-hour waiting period.

"The judge made the right decision, and we agree with her decision," Homer said. "We notified the Attorney General's Office that we didn't want to be a party [to an appeal.]"

No matter what the department's position, Brady said the decision on an appeal will be made by her office, which has 30 days to do so following the judge's opinion issued on June 9.

"It's our legal opinion that's being challenged," Brady said.

While the disagreement between client and lawyer may confound legal logic, there is a certain political logic to it because of the 2004 gubernatorial election when Gov. Ruth Ann Minner, the first-term Democrat who is Homer's boss, will be running again.

Although Brady has been lying low and William Swain Lee is regarded as the likely Republican nominee, Brady did distribute stickers saying, "Run! Jane Run!" on Return Day and hasn't taken herself out of it. There are few issues that rouse partisans more than abortion rights.

The legal battle has been running since January, when the Attorney General's Office advised the Board of Medical Practice to enforce what had been a dormant law requiring 24 hours to elapse after a woman consented to an abortion unless her life was in danger, according to court documents.

Planned Parenthood of Delaware sued Brady to stop the enforcement, and the Administrative Services Department became involved because the executive director for the Board of Medical Practice is a departmental employee. The executive director in conjunction with the Attorney General's Office would be responsible for taking action against doctors, who could be subject to penalties up to losing their license to practice medicine for violating the law.

The 24-hour waiting period went into the books in 1979 but was regarded as unenforceable after a 1983 opinion by the U.S. Supreme Court. Since then there has been still more case law, and after a patient's complaint to the medical board in 2001 called attention to the 24-hour waiting period, Brady's office took a new look at it and determined it should be complied with.

Judge Robinson determined otherwise. She concluded the law was unconstitutional and therefore unenforceable because it carved out an exception to the waiting period only when a woman's life was in danger, but not her health.

"By choosing to use language that does not specifically address dangers to a woman's health, the legislature has run afoul of a constitutional mandate," Robinson wrote.

Robinson issued a preliminary injunction against enforcement in March, and a month later, Homer notified the Attorney General's Office by e-mail that her department wanted it to stand.

"If you are asking for the department's position, we believe that Judge Robinson's opinion was correct on the merits and should not be appealed," Homer wrote.

Brady's office pursued the case, however, and Robinson last week came back with a permanent injunction -- the ruling that Brady currently is considering whether to appeal and Homer believes should not be.

"I'm sticking up for a statute," Brady said. "It is not facially unconstitutional just because it doesn't have the word 'health' in it. There is widespread support for a 24-hour waiting period."

Eve C. Gartner, a Planned Parenthood lawyer from New York in the case, found the split between the department and the attorney general to be curious. She noted that the state will have to pay Planned Parenthood's legal fees if the organization prevails in the case, which has gone its way so far.

The cost hasn't been calculated yet, she said, but it will run into "thousands" of dollars and only will mount if there is an appeal.

"For the voters of the state, it would be interesting, for the taxpayers," Gartner said.