Bush Administration Files Appeal in Another Partial-Birth Abortion Lawsuit 
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by Steven Ertelt
LifeNews.com Editor
December 21, 2004
Washington, DC (LifeNews.com) — Abortion advocates filed three separate lawsuits seeking to overturn the national ban on partial-birth abortions. Judges in the first round of the legal debate overturned the ban in all three cases.
The Bush administration has appealed the decisions and submitted its appeal brief in one case on Monday.
U.S. District Judge Phyllis Hamilton of San Francisco was the first of the three judges to overturn the ban. Her decision was the subject of a Justice Department brief that argued she made three critical errors.
Bush administration attorneys say Judge Hamilton was wrong to assume that the ban needs a health exception.
In an 82-page brief filed with the 9th U.S. Circuit Court of Appeals, the Justice Department says Congress conducted extensive hearings and included findings of fact in the bill confirming that medical authorities say the three-day-long abortion procedure is never needed in a medical emergency.
"Congress is best situated to make such findings and is entrusted by the Constitution to do so," the brief says.
The Justice Department also points to Congressional findings indicating that partial-birth abortions may pose health risks for women. Such risks include cervical incompetence, trauma to the uterus, and lacerations or hemorrhaging.
The Bush attorneys also say Hamilton wrongly decided that the ban was an undue burden on the "right" to abortion authorized under the Roe v. Wade decision.
Congress "narrowly and precisely defined the proscribed ‘partial-birth’ procedure" to ensure that it applies only to the partial-birth abortion procedure, the brief argues.
Hamilton also erred in calling the law constitutionally vague, the brief says. It notes that the partial-birth abortion procedure is clearly defined and is a distinct type of abortion procedure different from other abortion methods.
Judge Hamilton considered the lawsuit filed by Planned Parenthood and its California affiliate. The city of San Francisco also joined the case because a city hospital performs the abortions.
The three parties have until January 19 to submit their response to the brief.
Federal judges in New York and Nebraska previously overruled the law and put in place injunctions against its enforcement. Those opinions have also been appealed and the Justice Department filed its brief in the appeal of the Nebraska judge’s decision in late November.
President Bush signed the ban on partial-birth abortions last year. The legislation enjoys the support of anywhere from 60 to 80 percent of the public, depending on the poll.
