Third Federal Judge: Partial-Birth Abortion Ban Unconstitutional

National   |   Steven Ertelt   |   Sep 8, 2004   |   9:00AM   |   WASHINGTON, DC

Third Federal Judge: Partial-Birth Abortion Ban Unconstitutional Email this article
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by Steven Ertelt Editor
September 8, 2004

Lincoln, NE ( — As expected, a third federal judge has declared the nation’s ban on partial-birth abortions unconstitutional because it did not contain a disputed health exception. The decision sets up the next stage of the legal battle in a federal appeals court.

U.S. District Judge Richard Kopf ruled that the ban fell outside of a 2000 Supreme Court decision requiring bans on the gruesome procedure to have a health exception — even though many doctors groups say women would never need a three-day long abortion procedure in an emergency situation.

"According to responsible medical opinion, there are times when the banned procedure is medically necessary to preserve the health of a woman and a respectful reading of the congressional record proves that point,” Kopf wrote. "No reasonable and unbiased person could come to a different conclusion.”

However, 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."

Kopf said his ruling did not apply to cases when the unborn child is viable — or able to live outside of the mother’s womb. Modern medicine has pushed the point of fetal viability to approximately 22 weeks into the pregnancy.

Pro-life groups were not surprised by the decision, but expressed their disappointment.

"Despite compelling expert testimony, including fetal specialists testifying that partial-birth procedures inflict ‘severe and excruciating pain’ on the unborn child, Judge Kopf ignored scientific evidence," explained Wendy Wright of Concerned Women for America.

Judge Kopf, who previously overturned the Nebraska ban on partial-birth abortions that led to the Supreme Court’s 2000 Carhart vs. Stenberg decision, is the third federal judge to overturn the ban. Federal judges in California and New York previously overruled the law and put in place a permanent injunction against it.

The three rulings are expected to be appealed to the Supreme Court. The Bush administration has already appealed Judge Phyllis Hamilton’s ruling in San Francisco to the appeals court level. Similar appeals are expected in the New York and Nebraska decisions.

President Bush signed the ban on partial-birth abortions last year. Senator John Kerry repeatedly voted against the ban, which enjoys the support of anywhere from 60 to 80 percent of the public, depending on the poll.

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Judge Kopf’s opinion –