‘PARTIAL-BIRTH’ ABORTION: 3 State Laws Ruled Unconstitutional

      A federal appeals court ruled Friday that three states' bans on "partial-birth" abortions are unconstitutional and so vaguely worded that they could be interpreted to ban first- and second-trimester abortions, prompting some speculation that the issue will only be resolved by the U.S. Supreme Court. The Eighth U.S. Circuit Court of Appeals in St. Louis ruled separately but simultaneously on cases from Nebraska, Arkansas and Iowa due to the laws' similarity. While plaintiffs' attorneys brought up several issues of legality surrounding the various states' statutes, the court ruled only on "concerns about the vagueness of the laws -- measures that the judges believed could be read to prohibit common abortion procedures" (Salter, AP/Nando Times, 9/24). Chief Judge Richard Arnold wrote of the Nebraska statute: "The difficulty is that the statute covers a great deal more. It would also prohibit, in many circumstances, the most common method of second-trimester abortion, called a dilation and evacuation (D&E). Such a prohibition places an undue burden on the right of women to choose whether to have an abortion" (O'Hanlon, AP/National Journal, 9/24). Abortion-rights groups hailed the decision. Jill June, president and CEO of Planned Parenthood of Greater Iowa, said, "The real winners of this decision are the women of Iowa, who, when faced with a crisis pregnancy, will continue to be able to access the medical care they need. We hope the state of Iowa will now have the good sense to let women, together with their doctors, make personal medical decisions" (Strawbridge, Omaha World-Herald, 9/25). Janet Benshoof, president of the Center for Reproductive Law and Policy, which helped challenge the three laws, said, "The court's ruling confirms that the entire campaign to ban 'partial-birth abortion' -- a campaign that has consumed Congress and the federal courts for over three years -- is nothing but a fraud designed to rob American women of their right to abortion" (CRLP release, 9/24).

Next Stop: Washington
      Abortion opponents assailed the decision and predicted it would ultimately be decided by the U.S. Supreme Court. Janet Parshall, spokesperson for the Family Research Council, said, "U.S. Supreme Court, here we come. This is a classic case where politics is on a collision course with judicial reality" (Claiborne, Washington Post, 9/25). Referring to challenges to partial-birth laws pending in other states, National Right to Life Committee Legislative Director Douglas Johnson said, "We'll see what these other circuits do, and ultimately this issue will reach the Supreme Court, which has not spoken on the issue of partial-birth abortion" (Holmes, New York Times, 9/25). "Conventional wisdom has always maintained that this issue would eventually end up at the U.S. Supreme Court," said Nebraska Right to Life Director Julie Schmit-Albin. She may have help from Nebraska Attorney General Don Stenberg (R), who "vowed to go to the U.S. Supreme Court to try to put an end to what he called 'a barbaric procedure that is almost unspeakable.'" The Iowa attorney general's office said it is "still reviewing the ruling" (Omaha World-Herald, 9/25). Michael Teague, spokesperson for the Arkansas attorney general's office, said a decision is still being made. "Right now, we still need some time to take an objective review of how we might proceed," he said (Satter, Arkansas Democrat-Gazette, 9/25).

Far-Reaching Implications
      The Washington Post reports that apart from a further appeal, the decisions "are likely to have wide reverberations, not only in other states where such laws are being challenged ... but also in Congress, where the language of a pending partial-birth abortion bill is almost identical to that of the Iowa and Nebraska bans." Opponents of a recently-passed partial-birth law in Missouri believe Friday's ruling could have an impact on a pending judicial challenge. "This means the Missouri case won't go to trial; it'll go to summary judgement," Benshoof said (Washington Post, 9/25). The New York Times reports that the "ruling, the first time an appeals court has ruled on the constitutionality of state laws that have often been overturned in lower courts, is sure to be noted in the Senate, which is scheduled to vote next month on a measure that is virtually identical in language to one of the statutes the appeals court declared unconstitutional." Benshoof said, "This is a really significant decision, legally, political and legislatively." One Democratic staffer said, "It gives us a whole new way to argue the case." But the NRLC's Johnson countered, "Frankly, I doubt that this ruling yesterday will change a single vote. The senators take an oath to uphold the Constitution, not the ruling of a three-judge panel" (New York Times, 9/26).

Sign of the Times
      An editorial in Saturday's New York Times argues that the rulings "show that efforts to undermine abortion rights through the partial-birth ruse will not stand up to constitutional review." The editorial notes that Missouri Gov. Mel Carnahan (D) "showed political courage" in vetoing that state's law, and the "Eighth Circuit decision has now shown that [he] was right." The New York Times argues that what "is most frightening is that the statute would allow people accused of antiabortion violence to claim as a legal defense that their acts were necessary to protect the fetus from an illegal abortion." The editorial concludes: "By setting a clear precedent that will render the Missouri law invalid, the Eighth Circuit court will protect women's rights and help shield doctors in that state from a dangerous invitation to anti-abortionists to use terrorism and violence" (New York Times, 9/25).