Ninth Circuit Court of Appeals Hears Arguments in Appeal of Ruling Barring Federal Abortion Ban From Taking Effect

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco on Thursday heard oral arguments in an appeal of a ruling that barred a 2003 federal law banning so-called "partial-birth" abortion from taking effect, the Sacramento Bee reports (Cooper, Sacramento Bee, 10/21). The case -- one of three cases nationwide involving challenges to the Partial-Birth Abortion Ban Act (S 3) -- is an appeal of a 2004 ruling by U.S. District Judge Phyllis Hamilton that found the law unconstitutional.

Judge Stephen Reinhardt asked Assistant U.S. Attorney Gregory Katsas, who is representing the Department of Justice, what the judiciary's role is "when Congress says everybody says this is never necessary and you are confronted with a record with well-established people who say it is necessary?"

Quoting Supreme Court precedent, Katsas said that "Congress may act in the face of uncertainty" (Mintz, San Jose Mercury News, 10/20).

Judge Sidney Thomas questioned whether Congress' findings "matter at all," given conflicting testimony from physicians in lower courts.

Judge William Fletcher said a doctor could perform a procedure banned under the law "for the health of the woman."

Katsas said "there are medical arguments on both sides" and the court should defer to Congress' findings (Kravets, AP/Washington Post, 10/20). He added, "Congress is due respect as a coequal branch of government" and is "better situated (than the courts) to amass and weigh evidence."

Planned Parenthood Federation of America attorney Eve Gartner said, "When doctors can't do what they think is safest, women's health is going to suffer" (Egelko, San Francisco Chronicle, 10/21).

The California Medical Association filed a friend-of-the-court brief stating that the federal law could bar "the safest and most common procedures available for second-trimester abortions."

Thirty-one members of the U.S. House of Representatives have signed a brief supporting the ban.

The 9th Circuit Court panel did not indicate when it would rule on the appeal or if it would issue a ruling before a U.S. Supreme Court ruling on a "twin case" coming from the 8th U.S. Circuit Court of Appeals in St. Louis, the Bee reports.

Thomas asked Katsas about the possibility of the panel's ruling coming after a U.S. Supreme Court ruling, and Katsas said that "would be fine" (Sacramento Bee, 10/21).