Bush Administration Asks for Reinstatement of Ban on ‘Partial-Birth’ Abortion

Bush administration attorneys on Monday announced they filed an appeal to the U.S. Supreme Court to reinstate a federal ban on so-called "partial-birth" abortion that was struck down by the 8th Circuit Court of Appeals because the law does not include an exception to protect a pregnant woman's health, the Los Angeles Times reports (Savage, Los Angeles Times, 9/27). Lincoln, Neb.-based U.S. District Judge Richard 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.

In November 2004 the Department of Justice, which has been defending the law in the trials, appealed Kopf's ruling to the 8th Circuit Court in St. Louis, and a three-judge panel of the court upheld the decision in July. 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.

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, 7/11). It will take justices on the court several months to decide whether to hear the case, according to the Times (Los Angeles Times, 9/27).

Solicitor General Paul Clement wrote in the appeal -- which was filed on Friday and released on Monday -- that the case should be heard by the Supreme Court because it "involves the constitutionality of a significant act of Congress that has been invalidated and permanently enjoined by the lower courts" (Holland, AP/ABC News, 9/27). The appeal also says that the lower courts should have deferred to Congress instead of medical experts who testified in the case.

"Congress' findings concerning the medical necessity of partial-birth abortion were entitled to substantial deference," Clement told the court. Nebraska-based physician Leroy Carhart filed the original lawsuit saying the Partial-Birth Abortion Ban Act is unconstitutional. Carhart in 1997 also sued to strike down a similar Nebraska law as unconstitutional, and the Supreme Court agreed in a 2000 decision (Los Angeles Times, 9/27). Attorney General Alberto Gonzales officially filed the appeal to the Supreme Court, and his name was substituted for former Attorney General John Ashcroft as the formal party in the case -- now known as Gonzales v. Carhart (Bravin, Wall Street Journal, 9/27).