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Partial-Birth Abortion Ban of 2003 Found Unconstitutional

In three separate federal lawsuits filed late last year
challenging the Partial-Birth Abortion Ban of 2003, the first law
limiting a woman’s right to choose since Roe v. Wade, all three
U.S. District Courts have found the law unconstitutional and
therefore unenforceable.

The Partial-Birth Abortion Ban of 2003, passed by U.S. Congress
and signed into law by President Bush last November, was
immediately challenged by Planned Parenthood, The National Abortion
Federation, and Dr. Cahart, an abortion provider in Nebraska. Each
filed separate federal lawsuits in California, New York and
Nebraska respectively.

San Francisco, June 1, 2004 – The first to strike down
the law was U.S. District Judge Phyllis Hamilton, a Clinton

Hamilton ruled to indefinitely block the Bush administration
from enforcing the act against the Planned Parenthood Federation of
America clinics and their doctors, who perform nearly half of the
nation’s abortions, according to an online MSNBC report. She said
that it was an unconstitutional infringement of three decades of a
Supreme Court precedent.

“The act poses an undue burden on a woman’s right to choose an
abortion,” said Hamilton in her 120-page response.

In a statement, the Bush re-election campaign said, “Today’s
tragic ruling upholding partial-birth abortion shows why America
needs judges who will interpret the law and not legislate from the

Beth Parker, a Planned Parenthood lawyer was pleased with the
ruling and said that it sends a “strong message” to Attorney
General John Ashcroft and the Bush administration that “the
government should not be intruding on very sensitive and private
medical decisions.”

New York, August 26, 2004 – After closing arguments for
the case were made by the American Civil Liberties Union on behalf
of the National Abortion Federation, U.S. District Judge Richard
Conway Casey ruled that the law banning the abortion procedure was
unconstitutional because it did not exempt cases where the woman’s
health may be threatened. Although he called the procedure
“gruesome, brutal, barbaric and uncivilized,” he noted that many of
Congress’ factual findings about the ban were unsupported.

Casey also considered that the Supreme Court struck down a
similar state law in Nebraska four years ago. The court’s ruling
required that any law limiting abortion must have a clause
permitting doctors to use a banned procedure if they determine that
the risk to a woman’s health would be greater without it, which the
Partial-Birth Abortion Ban 2003 does not.

Nebraska, September 8, 2004 – U.S. District Judge Richard
Kopf echoed the same response when he ruled that the ban was
unconstitutional because it does not include a health exception for
the woman. He said that Congress ignored the most experienced
doctors in determining that the banned procedure would never be
necessary – a finding he found “unreasonable,” according to an
online MSNBC report.

“According to responsible medical opinion, there are times when
the banned procedure is medically necessary to preserve the health
of a woman and a respectful reading of the congressional record
proves that point,” Kopf wrote. “No reasonable and unbiased person
could come to a different conclusion.”

Douglas Johnson, the legislative director of the National Right
to Life Committee, said in response to the rulings, “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. Future appointments
to the Supreme Court will determine whether partial-birth abortion
remains legal. President Bush is determined to ban partial-birth
abortion, but John Kerry has vowed that he will appoint to the
Supreme Court only justices who share his views on abortion.”

Although the term “partial-birth abortion” is not medically
accepted, it is defined by the bill as “intentional delivery of a
fetus until, in the case of a headfirst presentation, the entire
fetal head is outside the body of the mother, or in the case of a
breech position, any part of the fetal trunk past the navel is
outside the body of the mother for the purpose of performing an
overt act that the person knows will kill the partially delivered
living fetus.”

Supporters of the bill estimate that this procedure accounts for
only 2,200 abortions, about 10 percent of the nation’s abortions a
year, but medical professionals have testified that the law would
affect 130,000 abortions annually. The banned method can happen
even at times when doctors try to avoid it. Such instances can
occur when doctors try to remove the fetus from the womb in pieces,
which is acceptable under the ban. In addition, the ban could
outlaw abortions as early as 12 to 15 weeks, including those that
doctors say are safe and among the best to protect women’s health,
according to a Planned Parenthood press release.

Abortion rights activists and providers say that the law
endangers almost all second trimester abortions, because the fetus
may exit the womb during a procedure that the ban would otherwise
consider acceptable. Violation of the ban carries a two-year prison
term. Abortion rights activists say the law was the government’s
first step toward outlawing abortion.

It is expected that all three rulings will be appealed to the
Supreme Court by the Bush administration.