Federal Judge Rules Ban on So-Called ‘Partial-Birth’ Abortion Is Unconstitutional
U.S. District Judge Phyllis Hamilton in San Francisco on Tuesday ruled that a federal ban on so-called "partial-birth" abortion is unconstitutional because the law would "endanger women's health and violate their right of access to abortion," the San Francisco Chronicle reports (Egelko, San Francisco Chronicle, 6/2). In November 2003, President Bush signed the Partial-Birth Abortion Ban Act, which bans procedures in which a physician "deliberately and intentionally delivers a living fetus" to the point where the head, or any part of the torso above the navel if the fetus is in the breech position, is outside the woman's body "for the purpose of committing an overt act of killing" the fetus. Under the law, doctors who perform the procedure could face fines and prison sentences of up to two years. Instead of a health exception, the legislation includes a long "findings" section that includes medical evidence presented during congressional hearings that supporters say indicates that partial-birth abortion is never medically necessary (California Healthline, 3/30).
In her "scathing" 120-page ruling, Hamilton said that the congressional findings were "the product of biased hearings that relied on a handful of anti-abortion doctors," the Chronicle reports (San Francisco Chronicle, 6/2). Hamilton said that the law is unconstitutional in three ways: it places an undue burden on women seeking abortions; its language is "dangerously vague"; and it lacks a required exception to protect the woman's health, the New York Times reports (Liptak, New York Times, 6/2). Hamilton ruled that the ban against intact dilation and extraction could "force pregnant women to undergo a procedure that is less safe under their particular circumstances" and added that the ban "creates a risk of criminal liability during virtually all abortions performed after the first trimester, and has the effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus" (San Francisco Chronicle, 6/2). Hamilton also said that the law is unconstitutionally vague because it "deprives physicians of fair notice and encourages arbitrary enforcement," and she particularly objected to the use of the terms "partial-birth abortion" and "overt act," which she said were ambiguous, the New York Times reports. In addition, Hamilton ruled that the law did not include an exception for the health of a woman, which is required by the U.S. Supreme Court. The law provides an exception for the woman's life but not her health (New York Times, 6/2).
The case was brought by the city and county of San Francisco, Planned Parenthood Federation of America and its affiliates and clinics nationwide and physicians to whom they refer patients (Romney, Los Angeles Times, 6/2). Hamilton's ruling will specifically prevent the Justice Department from enforcing the law at any of Planned Parenthood's 900 clinics, which perform about 50% of the nation's abortions, and it also applies to any Planned Parenthood physicians who perform intact dilation and extraction outside of the organization's clinics. Similar challenges to the ban are ongoing in federal courts in New York City and Lincoln, Neb. (Kaufman, Washington Post, 6/2).
DOJ officials did not say if they planned to appeal the ruling but added that the department would "continue to devote all resources necessary to defend this act of Congress, which President Bush has said 'will end an abhorrent practice and continue to build a culture of life in America'" (San Francisco Chronicle, 6/2). In a statement, White House Press Secretary Scott McClellan said, "The president strongly disagrees with today's California court ruling, which overturns the overwhelming bipartisan majority in Congress that voted to pass this important legislation. The president is committed to building a culture of life in America, and the administration will take every necessary step to defend this law in the courts" (New York Times, 6/2). Sen. George Allen (R-Va.) said, "It seems to be fairly typical that an unelected federal judge in San Francisco tries to stop a law that received such broad bipartisan support in Congress" (Los Angeles Times, 6/2). Douglas Johnson, legislative director of the National Right to Life Committee, said that Hamilton's "deep personal hostility to the law has been evident throughout the judicial proceedings," adding, "It is the U.S. Supreme Court that will ultimately decide whether our elected representatives can ban the practice of mostly delivering a living premature infant and then puncturing her skull."
Sen. Dianne Feinstein (D-Calif.), who opposes the law, said, "The vague wording of the bill -- the use of the term 'partial birth' as opposed to writing in a specific medical procedure -- was really a stalking horse for anti-choice advocates to impact second-trimester abortions" (Washington Post, 6/2). A campaign official for presumptive Democratic presidential nominee Sen. John Kerry (Mass.) said that Kerry "voted to restrict late-term abortions but only where there was a clear exception for life or health of women. However, George Bush pushed through a different piece of legislation that failed to protect the health of women, and that is what the court struck down today" (Los Angeles Times, 6/2). Planned Parenthood President Gloria Feldt said the ruling "reaffirmed a woman's right to choose, and a doctor's right to practice medicine" (Washington Post, 6/2). Beth Parker, an attorney who represented Planned Parenthood, said that the ruling is "an enormous victory," adding, "It reaffirms that the government has no role in this very intimate decision between the woman and her physician" (New York Times, 6/2).
Broadcast reports on the ruling include the following:
- NPR's "All Things Considered": NPR's Richard Gonzales reports on the ruling (Gonzales, "All Things Considered," NPR, 6/1). The complete segment is available online in RealPlayer.
- NPR's "Morning Edition": The segment includes comments from Planned Parenthood Senior Staff Attorney Eve Gartner and Johnson (Gonzales, "Morning Edition," NPR, 6/2). The complete segment is available online in RealPlayer.
- KCRW's "Which Way, L.A.?": The segment includes comments from Pam Maclean, a reporter for the legal newspaper the San Francisco Daily Journal (Olney, "Which Way, L.A.?," KCRW, 6/1). The complete segment is available online in RealPlayer.
- KQED's "The California Report": The segment reports on the ruling (Shafer, "The California Report," KQED, 6/2). The complete segment will be available online in RealPlayer after the broadcast.