Nebraska Judge Strikes Down Federal Ban on So-Called ‘Partial-Birth’ Abortion

U.S. District Judge Richard Kopf in Lincoln, Neb., on Wednesday became the third judge 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 Omaha World-Herald reports (Tysver, Omaha World-Herald, 9/8). The Partial-Birth Abortion Ban Act (S 3) 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. The Department of Justice has been defending the law in three separate trials after federal judges in San Francisco, New York and Nebraska each issued temporary restraining orders to prevent enforcement of the ban following President Bush's November 2003 signing of the measure.

The restraining orders were issued in response to lawsuits 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. Each lawsuit alleged that the law is unconstitutional because of the absence of a health exception. 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, 8/27).

Kopf's more-than-400-page ruling said that Congress' finding that the banned procedure is never medically necessary is "factually unsound," according to Reuters (Gillam, Reuters, 9/8). Kopf, who four years earlier ruled a similar Nebraska ban unconstitutional, said that the federal law is "vague" and that Congress "ignored" testimony from doctors who said the procedure is sometimes necessary to protect a pregnant woman's health, according to USA Today. Kopf wrote, "According to responsible medical opinion, there are times when the banned procedure is medically necessary ... and a respectful reading of the congressional record proves that" (Willing, USA Today, 9/9). Kopf said that one of DOJ's own witnesses testified during the trial that the procedure may be necessary to protect a woman's health, according to the World-Herald. "The long and short of it is Congress arbitrarily relied upon the opinions of doctors who claimed to have no (or very little) recent and relevant experience with surgical abortions and disregarded the views of doctors who had significant and relevant experience with these procedures," Kopf wrote (Omaha World-Herald, 9/8).

Kopf's decision "echoed" the earlier rulings by federal judges in San Francisco and New York, who also struck down the law for lacking a health exception, the AP/Boston Globe reports (O'Hanlon, AP/Boston Globe, 9/9). U.S. District Judge Richard Casey of New York -- who has called the banned procedure "brutal, barbaric and uncivilized" -- last month struck down the law, saying that it is unconstitutional because the Supreme Court has "made clear" that a health exception is required for any such law. U.S. District Judge Phyllis Hamilton of the Northern District of California in June also deemed the federal ban unconstitutional. Hamilton's ruling prevented the law from being enforced against the 900 PPFA clinics nationwide and PPFA-affiliated physicians (California Healthline, 8/27).

DOJ on Wednesday said it would appeal each of the rulings striking down the law, USA Today reports (USA Today, 9/9). "After signing this act of Congress, President Bush pledged that 'the executive branch will vigorously defend this law against any who would try to overturn it in the courts,'" a DOJ statement said, adding, "As the attorney general has noted, we will continue to defend the law to protect innocent new life from partial-birth abortion and have already appealed the recent district court ruling from California that found the law unconstitutional" (DOJ release, 9/8). CRR attorney Priscilla Smith said she expects the rulings to be appealed to federal circuit courts of appeal. She added that the case would automatically go on to the U.S. Supreme Court only if there was a split decision in the federal appeals courts or if the makeup of the Supreme Court changes. The current Supreme Court justices are the same as in 2000 when the court struck down Nebraska's ban on the procedure because it lacked a health exception. "If there is no split in the circuits, normally the Supreme Court won't take a case," Smith said (Tysver, Omaha World-Herald, 9/9).

"What you have is a decision of a mere four years ago striking a similar ban," Louise Melling, director of the ACLU Reproductive Freedom Project said, adding, "And now you have three courts striking a ban for the same reason." However, Jay Sekulow, chief counsel for the American Center for Law and Justice, said, "It's very unusual for the court not to take a case where an act of Congress has been struck down," adding, "I would be very surprised if the court took a pass on this" (AP/Boston Globe, 9/9).

Abortion-rights supporters on Wednesday "cheered" Kopf's ruling, saying that the three judges' decisions "prov[e]" their claim that the law is unconstitutional, Congressional Quarterly reports. "In passing this far-reaching ban on second-trimester abortions, Congress and the president willingly gambled with the Constitution and with women's health," Melling said (Dlouhy, Congressional Quarterly, 9/8). Dr. LeRoy Carhart, a plaintiff in the Nebraska trial and the abortion provider who challenged the similar Nebraska ban, said, "It's a shame that I have to continue going to court, fighting the same fight to protect my patients' health," adding, "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" (CRR release, 9/8).

PPFA President Gloria Feldt said, "Today's ruling should be a cease and desist order for Attorney General Ashcroft and his taxpayer-funded anti-choice pursuits," adding, "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" (PPFA release, 9/8).

Abortion-rights opponents said they would "step up the fight in the political arena" following the three judges' decisions, the World-Herald reports. "These three rulings in San Francisco, New York and Lincoln, Neb., will intensify the response of pro-life voters at the ballot box this November," Julie Schmit-Albin, executive director of Nebraska Right to Life, said, adding, "The possibility of future Supreme Court appointments lie in the balance" (Omaha World-Herald, 9/8). National Right to Life Committee Legislative Director Douglas Johnson said, "Four years ago, five justices of the Supreme Court said that Roe v. Wade allows abortion providers to perform partial-birth abortions whenever they see fit, even on healthy women with healthy babies, if the providers claim some 'health' benefit," adding, "Future appointments to the Supreme Court will determine whether partial-birth abortion remains legal" (NRLC release, 9/8).

Nikolas Nikas, general counsel for Americans United for Life, said that the Nebraska decision is "regrettable, but predictable," adding, "The so-called 'health' exception is the Trojan Horse of abortion jurisprudence. No state or federal prohibition can easily survive a judicial challenge because the Supreme Court has interpreted the term 'health' so liberally" (AUL release, 9/8).

NPR's "All Things Considered" on Wednesday reported on the ruling. The segment includes comments from Melling and Sekulow (Smith, "All Things Considered," NPR, 9/8). The complete segment is available online in RealPlayer.