Partial-Birth Abortion Ban Unconstitutional Federal Judge Says

National   |   Steven Ertelt   |   Jun 1, 2004   |   9:00AM   |   WASHINGTON, DC

Partial-Birth Abortion Ban Unconstitutional Federal Judge Says

by Steven Ertelt Editor
June 1, 2004

San Francisco, CA ( — The federal partial-birth abortion ban, passed by Congress and signed into law by President Bush, lost a court battle on Tuesday. A federal judge found it unconstitutional and blocked the Bush administration from enforcing the ban against some who perform the abortions.

U.S. District Judge Phyllis Hamilton said the ban runs afoul of the 2000 Carhart vs. Stenberg Supreme Court decision that found a Nebraska partial-birth abortion ban unconstitutional because it lacked an exception to allow the disputed abortions to protect a woman’s health.

The Bush administration argued that the medical community acknowledges that there are never any instances when a three-day long abortion procedure would be needed in an emergency health situation.

In closing out the testimony for the Bush administration, Dr. Curtis Cook, an OB/GYN and Michigan State University professor who specializes in high-risk pregnancies and pregnancies with complications, told the court he didn’t believe partial-birth abortions were ever medically necessary.

Cook said the American College of Obstetricians and Gynecologists is on record as saying "there is no situation where they can think that this is the only option available."

Judge Hamilton, in a 120-page decision, also said the ban on the gruesome abortion procedure presents an "undue burden" for women, is unconstitutionally vague, and infringes on the so-called right to abortion handed down by the Supreme Court in the 1973 Roe v. Wade decision.

Hamilton’s ruling only applies to Planned Parenthood facilities and the city of San Francisco, which joined the lawsuit. It does not apply nationwide.

Earlier in the case, Hamilton said it would be unfair to the parties in two similar cases to issue a ruling that applied to all partial-birth abortions.

Planned Parenthood of Los Angeles hailed Hamilton’s decision.

"The Ashcroft Department of Justice can no longer threaten Planned Parenthood doctors with the daunting specter of criminal prosecution," PPLA President and CEO Mary-Jane Wagle said.

"In their zealous pursuit of this dangerous ban and their attempt to seize hundreds of confidential medical records, this administration has squandered vast amounts of U.S. tax dollars to appease anti-choice extremists and fulfill an ideological agenda," Wagle added.

Wagle said her group is prepared to head back to court for an appeal of Judge Hamilton’s decision.

The ruling came in one of three lawsuits filed by abortion advocates against the law.

The national Planned Parenthood abortion business and its California affiliate filed the lawsuit that Judge Hamilton heard.

Partial-birth abortion practitioners filed suit in Nebraska and the National Abortion Federation, a group of abortion businesses, filed suit in New York. Decisions in the Nebraska and New York cases are still pending.