ST. LOUIS (ABP) — A federal appeals court in St. Louis has become the latest to declare unconstitutional a 2003 federal law banning what abortion-rights opponents call “partial-birth” abortions. The decision is sure to add fuel to the debate over President Bush's future nominee to the Supreme Court.
On July 9, a panel of the Missouri-based 8th U.S. Circuit Court of Appeals upheld a ruling by a federal district judge in Nebraska overturning the Partial-Birth Abortion Ban Act of 2003. It is the first time the law has been reviewed at the appeals-court level. The judges said the law violates earlier Supreme Court rulings guaranteeing women the right to terminate their pregnancies. The bill was passed by Congress and signed into law by President Bush.
The latest ruling followed on the heels of similar rulings against the bill by federal district judges in California and New York. All relied on a precedent found in the high court's controversial 2000 Stenberg vs. Carhart decision, which struck down a similar state statute. That ruling requires any law restricting abortion to provide exceptions to protect the mother's life and health.
The Partial-Birth Abortion Ban Act did not provide a health exception. Instead, it cited congressional findings determining that the procedure the ban targets is never medically necessary to protect a woman's health. The procedure, dilation and extraction, involves the partial delivery of a fetus, whose skull is punctured and its contents evacuated to make it easier to pass the head through the birth canal. Opponents of abortion rights commonly term the procedure “partial-birth” abortion.
Doctors say it is exceedingly rarely used.
The 8th Circuit judges upheld a ruling by District Judge Richard Kopf, who said last year that the ban was so broadly written as to potentially ban other, less-controversial late-term abortion procedures.
The appeals court also deferred to earlier court decisions giving high levels of protection to abortion rights.
“When 'substantial medical authority' supports the medical necessity of a procedure in some instances, a health exception is constitutionally required,” Judge Kermit Bye wrote, for a unanimous court. “In effect, we believe when a lack of consensus exists in the medical community, the Constitution requires legislatures to err on the side of protecting women's health by including a health exception.”
Anti-abortion groups said that argument is nonsensical.
“[I]t makes no sense to say one must kill a child who is more than half born to advance the mother's health instead of simply completing a live delivery,” said Gail Quinn, an anti-abortion activist for the United States Conference of Catholic Bishops, in a statement released shortly after the ruling. “There is no place in a civilized society for this cruel and dangerous practice, and we look forward to today's decision being overturned by the U.S. Supreme Court.”
If the issue makes it to the Supreme Court, it illustrates the stakes of the vacancy created by Justice Sandra Day O'Connor's recent resignation. O'Connor voted with the 5-4 majority in the Stenberg vs. Carhart decision. But if President Bush nominates — and the Senate approves — a strongly anti-abortion judge to replace her, future rulings on such bans could do away with the health exception.