WASHINGTON (ABP) — Two more federal appeals courts have upheld challenges to a nationwide ban on a controversial abortion procedure, increasing the chance that the Supreme Court will end up hearing the case.
On Jan. 31, both the New York-based 2nd U.S. Circuit Court of Appeals and the San Francisco-based 9th Circuit upheld lower federal courts' rulings that the 2003 federal law banning so-called “partial-birth” abortion is unconstitutional.
The rulings, both by three-judge panels, followed a similar July 9 ruling from the 8th Circuit.
The trio of rulings increases the chance that the Supreme Court will choose to hear arguments on the issue.
The fate of the law may be up for grabs, due to the court's new makeup. The latest decisions came the same day the Senate voted to affirm Samuel Alito to a seat on the Supreme Court. Alito, chosen by abortion opponent President Bush, replaces retiring Justice Sandra Day O'Connor, who often supported abortion rights.
Both recent rulings are based — as were the lower-court rulings — largely on a precedent found in the Supreme Court's controversial 2000 Stenberg v. Carhart decision. 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.
O'Connor cast the deciding vote in Stenberg v. Carhart. With her departure, abortion-rights supporters say, the health exception may not survive a challenge.
The disputed procedure, known medically as “intact 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. Doctors say it is used in only exceedingly rare circumstances.
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