Three federal judges recently ruled that the Partial Birth Abortion Ban Act of 2003 is unconstitutional. President Bush signed the measure into law last November, but it was never enforced, because the judges in California, New York and Nebraska agreed to hear challenges in simultaneous non-jury trials that began in March.
In June, U.S. District Judge Phyllis Hamilton in San Francisco determined, the statute “poses an undue burden on a woman’s right to choose an abortion.”
In August, U.S. District Judge Richard Casey in New York City noted, the U.S. Supreme Court had made clear that a banned medical procedure must allow an exception to preserve a woman’s health. Casey made reference to the Supreme Court’s decision four years ago which struck down a similar ban approved by the Nebraska legislature. At the same time, however, Casey found the late term procedure to be “gruesome, brutal, barbaric and uncivilized.”
In September, U.S. District Judge Richard Kopf in Lincoln found it “unreasonable” and “factually unsound” on the part of Congress to conclude that partial-birth abortions were never warranted. Kopf’s ruling was more than double the length of the two previous decisions. “According to responsible medical opinion, there are times when the banned procedure is medically necessary to preserve the health of a woman, and a respectful reading of the congressional record proves that point. No reasonable and unbiased person could come to a different conclusion,” Kopf wrote.
The statute contains an exception when the life of the mother–but not her health–is at risk.More than one million abortions are performed in the U.S. on average each year. Backers of the ban say it would outlaw about 2,200 abortions annually. However, abortion rights advocates claim the law could include nearly all second-trimester abortions, which account for about ten percent all abortions performed in the U.S.
Nebraska Dr. LeRoy Carhart, a plaintiff in the Nebraska lawsuit, also brought the earlier challenge that wound up before the U.S. Supreme Court in 2000. “It’s a shame that I have to continue going to court, fighting the same fight to protect my patients’ health. But if the government takes this battle back to the Supreme Court, I will continue the fight to be able to provide the safest care for my patients. The government has no business in a medical professional’s office determining the safest or best treatment for patients, with no knowledge of the medical circumstances,” Carhart said.
However, the American Center for Law and Justice called the Nebraska decision “legally flawed” because it exhibits hostility to medical experts who have respect for human life. ACLJ Chief Counsel, Jay Sekulow, noted, “The court refused to consider the expert testimony of well-recognized and highly respected medical experts simply because they had not performed abortions. We are hopeful that the appeals process will result in overturning the decisions of the lower courts and conclude that the law designed to end the horrific procedure known as partial-birth abortion survives these constitutional challenges. The stage is now set for a lengthy and critical legal battle that ultimately will end up at the Supreme Court of the United States,” he said.
The ACLJ, which filed an amicus brief on behalf of 25 members of Congress in the New York case, says it will file briefs in support of the ban at the appellate court level in the three cases. Likewise, the nation’s largest faith-based association of physicians said, “no baby should be subjected to this inhumane procedure.”
Christian Medical Association Executive Director, Dr. David Stevens, stated, “This case and the congressional evidence backing the legislation have helped awaken the conscience of America tothe pain of abortion. Testimony by fetal pain experts has revealed that an abortion subjects an unborn child to ‘intense pain, occurring prior to fetal demise.’ Such testimony documents that ‘aspects of pain perception are present from as early as six to seven weeks gestation’ and that babies cannot suppress pain like adults can.
Whatever the courts may decide, this issue has already been decided in the court of public opinion. The verdict is that Americans have declared this to be a barbaric procedure–one that must never be tolerated in a society that holds that ‘all men are created equal, that they are endowed by their Creator with certain unalienable Rights’–foremost of which is the right to life.”
Other pro-life and pro-family organizations expressed disappointment with the federal court rulings. “It is unjust that three judges can thwart the will of the people, Congress, and the President, and allow this immoral form of child-killing to continue. Because the ban on the gruesome abortion procedure enjoyed heavy popular and congressional support, these cases are destined to go to the Supreme Court,” said Operation Rescue President Troy Newman. “These unjust rulings will not persuade us to go quietly into the night, but instead, strengthen our resolve to continue to raise our voices on behalf of the innocent babies and the women who suffer profoundly from this particularly heinous abortion method,” Newman said.
Concerned Women for America pointed out that all three lawsuits were filed by abortion providers, not women. CWA Senior Policy Director, Wendy Wright, stated, “For all the public talk of abortion being ‘a woman’s right to choose,’ in courtrooms the cases revolve around abortionists’ right to choose. Judges focus not on whether a woman ‘needs’ an abortion to preserve her life or health, but rather, which violent procedure will cause more damage to the mother–since every abortion method can injure her (not to mention what it does to the baby).”
American Life League President Judie Brown said, the court rulings expressed blatant contempt for life. “Modern science and medicine continue to echo that which the pro-life movement has stated for the past three decades: Life begins at fertilization/conception. At that moment, a new human life begins, and his civil right to life must be protected like that of any other U.S. citizen. Until the pro-life movement is willing to stand united in its resolve to protect the life of every innocent pre-born baby without exception, we will never achieve a true victory for the babies,” Brown said.
Pro-choice groups hailed the three court rulings.Planned Parenthood Federation President of America President, Gloria Feldt, said, “The rulings should be a cease and desist order for Attorney General Ashcroft and his taxpayer-funded anti-choice pursuits. Like the San Francisco and New York courts, the Nebraska court recognized that women’s health, medical privacy and the U.S. Constitution trump anti-choice ideology. Women and doctors should make private, personal health care decisions -- not John Ashcroft or any other politician.
All three cases included the overwhelming testimony of highly respected ob/gyns from around the country who testified that this law would ban abortions as early as 12 to 15 weeks in pregnancy, abortions they say are safe, and among the best for women’s health. The ban would further fail to safeguard women because it does not contain an exception to protect their health,” Feldt said.
Elizabeth Cavendish, interim president of NARAL-Pro-Choice America, took aim at the White House. “President Bush stands zero for three–his federal abortion ban has been struck down for the third time. However, we know this administration will not be deterred–they will continue plotting to change the federal courts so they can reach their ultimate goal of eliminating a woman’s right to choose. Their strategy is clear–they can’t stop striking out, so they’re going to hire umpires who share their disastrous vision,” Cavendish said.
The Religious Coalition for Reproductive Choice, in a statement, said, "The nine-year anti-choice effort to impose a federal abortion ban has met another defeat. This legislation is the keystone of a coordinated campaign to deny women full and effective reproductive health care. The absence of the legally required–as well as morally necessary–health exception makes it clear that the purpose of this legislation is to undermine the legality of all abortions at any stage of pregnancy, not to outlaw some procedures.”
Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism, called the ban an “unconstitutional infringement” of a woman’s right to reproductive choice. “The rulings affirm our strong belief that sensitive medical decisions should remain in the hands of women, in consultation with their doctors and on the basis of their own beliefs, without interference from those with political agendas in opposition to established rights,” Saperstein said.
Douglas Johnson, legislative director for National Right to Life Committee, said this fall’s presidential election will ultimately have a bearing on whether partial-birth abortion remains legal. “The same nine justices are still there. Presumably, they’re still 5-4 in favor of partial-birth abortion. But very likely, the president elected in November will have the opportunity to appoint at least a couple of Supreme Court Justices during the next four-year term,” Johnson said.
Challenges regarding the ban on partial-birth abortion will likely end up at the Supreme Court in the next 12 to 18 months.
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