Appeals Court Rules Federal Ban on ‘Partial-Birth’ Abortion Unconstitutional

A three-judge panel of the 8th U.S. Circuit Court of Appeals on Friday upheld a decision by Lincoln, Neb.-based U.S. District Judge Richard Kopf to strike down a federal ban on so-called "partial-birth" abortion because the law does not include an exception to protect a pregnant woman's health, the AP/Columbia Daily Tribune reports. The ruling is expected to be appealed to the U.S. Supreme Court (AP/Columbia Daily Tribune, 7/9).

Kopf and federal judges in San Francisco and New York struck down the Partial-Birth Abortion Ban Act (S 3) -- signed by President Bush in November 2003 -- because it lacks a health exception. The Department of Justice, which has been defending the law in the trials, appealed Kopf's ruling to the 8th Circuit in November 2004.

The law bans "an abortion in which a physician deliberately and intentionally vaginally delivers a living, unborn child's body until either the entire baby's head is outside the body of the mother, or any part of the baby's trunk past the navel is outside the body of the mother and only the head remains inside the womb, for the purpose of performing an overt act (usually the puncturing of the back of the child's skull and removing the baby's brains) that the person knows will kill the partially delivered infant." Abortion providers who violate the ban could face felony charges, up to two years in prison and fines of up to $250,000.

Lawsuits alleging that the law is unconstitutional because of the absence of a health exception were filed by Planned Parenthood Federation of America, the American Civil Liberties Union on behalf of the National Abortion Federation and the Center for Reproductive Rights on behalf of four abortion providers. In place of a health exception, the law includes a long "findings" section that documents medical evidence presented during congressional hearings that, according to supporters of the law, indicates that the procedures banned by the law are never medically necessary (California Healthline, 9/29/04).

"When 'substantial medical authority' supports the medical necessity of a procedure in some instances, a health exception is constitutionally required," Judge Kermit Bye of the 8th Circuit wrote in the ruling, adding, "In effect, we believe when a lack of consensus exists in the medical community, the Constitution requires legislatures to err on the side of protecting women's health by including a health exception."

DOJ had argued that Congress found that the procedure is never medically necessary (AP/Columbia Daily Tribune, 7/9). The agency has 90 days to request that the full 8th Circuit hear the case or to appeal it to the Supreme Court (Preston, New York Times, 7/9).

"This ruling confirms the necessity of allowing women and their doctors to make medical decisions free from the interference of politicians," NAF President and CEO Vicki Saporta said.

Louise Melling, director of the ACLU Reproductive Freedom Project, said, "It is time for politicians to stop placing their political agenda above the health of American women" (ACLU/NAF release, 7/8).

National Right to Life Committee Legislative Director Douglas Johnson said that the ruling highlights the likelihood that the successor to Supreme Court Justice Sandra Day O'Connor "will cast the deciding vote on whether the brutal partial-birth abortion method remains legal" (NRLC release, 7/8).