Federal Appeals Courts Rule Against Partial Birth Abortion Ban

The 9th U.S. Circuit Court of Appeals in San Francisco ruled Tuesday that the Partial Birth Abortion Ban Act proposed by the Bush administration is too vague to be accepted into law. Just hours later, a three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan issued a similar decision. The New York decision agreed with a 2004 ruling by a judge who described the partial birth abortion procedure as "gruesome, brutal, barbaric and uncivilized," yet upheld women’s rights to have the procedure performed. The Partial Birth Abortion Ban was vetoed twice by President Clinton, and abortion rights activists see it as a threat to the Supreme Court’s 1973 Roe v. Wade decision.

In California, Judge Stephen Reinhardt wrote, "We are reluctant to invalidate an entire statute. However, after considering all of the obstacles to our devising a narrower remedy, we conclude that such is our obligation." His comments referred to the court’s finding that the law is vague and too broad, so there was no other remedy possible except to rule against it. Despite claims made by the Justice Department that doctors generally agree that late-term abortions are never necessary to preserve the health of the mother, the panel rejected such arguments. "The government all but admits in its reply brief that no medical consensus exists regarding the need for the prohibited procedures to preserve the health of women in certain circumstances," the court said.

Judge Chester J. Straub, the sole dissenting judge in New York, said in a statement, "Allowing a physician to destroy a child as long as one toe remains within the mother would place society on the path towards condoning infanticide." He added, "I find the current expansion of the right to terminate a pregnancy to cover a child in the process of being born morally, ethically, and legally unacceptable."

The Partial Birth Abortion Ban was signed into law in 2003, but it has not been enforced because of immediate legal challenges files in several states. Partial birth abortion, which doctors call intact dilation and extraction, involves partially removing the fetus from the womb and then puncturing or crushing the skull. The procedure is usually performed during the second trimester of pregnancy, sometimes after the fetus has fully developed. Justice Department attorneys have said that the procedure is inhumane and painful to the fetus, and a government lawyer argued that it "blurs the line of abortion and infanticide."