Posted: June 17, 2003
AT ODDS OVER ABORTION CASE
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
"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
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
"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
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.
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