Federal Judge Says Partial-Birth Abortion Ban May be Unconstitutional

National   |   Steven Ertelt   |   Nov 5, 2003   |   9:00AM   |   WASHINGTON, DC

Federal Judge Temporarily Blocks Partial-Birth Abortion Ban

by Steven Ertelt
LifeNews.com Editor
November 5, 2003

Lincoln, NE (LifeNews.com) — Shortly after President Bush signed the partial-birth abortion ban into law, a federal judge in Nebraska said the pro-life law is unconstitutional and issued a temporary injunction against it.

"It seems to me the law is highly suspect, if not a per se violation of the constitution," said U.S. District Judge Richard Kopf.

Kopf agreed with a previous Supreme Court decision and said the law should have included a health exception.

Pro-life groups say a health exception is unnecessary and would make the ban useless as any reason can be given to justify a partial-birth abortion as necessary to protect a mother’s health.

"While it is also true that Congress found that a health exception is not needed, it is, at the very least, problematic whether I should defer to such a conclusion when the Supreme Court has found otherwise," Kopf said.

Attorneys for the Bush administration disagreed.

U.S. Justice Department attorney Anthony Coppolino told Kopf that he should show deference to Congress’ findings that the abortion procedure is not medically necessary.

Kopf stopped short of prohibiting the law nationwide, saying his injunction only applied to the four abortion practitioners who filed the Nebraska lawsuit. He did not schedule a full hearing for the case.

Three pro-abortion groups filed suit in various federal courts on Friday to prevent the legislation from becoming law. The Center for Reproductive Rights, a pro-abortion law firm based in New York, filed one of the lawsuits in federal court in Nebraska on behalf of LeRoy Carhart, who performs partial-birth abortions in Omaha.

The suits were filed in advance in an attempt to obtain an injunction immediately after Bush’s signature.

The Nebraska lawsuit included four abortion practitioners: LeRoy Carhart of Nebraska; William Fitzhugh of Virginia; William Knorr who does abortions in Georgia, Alabama, South Carolina and New York; and Jill Vibhakar of Iowa.

Kopf also said the bill did not present "an objective" presentation of the facts and had a "serious vagueness problem."

He also wondered why Congress didn’t invite those who perform partial-birth abortions to Congress to testify.

Carhart has been in court before in an attempt to block a ban on partial-birth abortions. He sued to overturn Nebraska’s state ban and, in 2000, the Supreme Court agreed that the law was unconstitutional.

If was Kopf who originally ruled that the Nebraska ban was unconstitutional.

Pro-life lawmakers tightened up the language in the bill — making the definition of the abortion procedure more specific and including a lengthy findings section countering the court’s objection that a health exception is necessary.

Hearings are also scheduled today on the other two pro-abortion lawsuits.

The ACLU filed a similar lawsuit in New York on behalf of the National Abortion Federation and Planned Parenthood Federation of America filed suit in federal court in San Francisco for its affiliates nationwide.

Bush spokesman Scott McClellan said the president believes the new law will be upheld. "We believe it is constitutional and you could expect that we would vigorously defend this law in the courts," McClellan said.