Partial-Birth Abortion Ban Unconstitutional, Appeals Court Rules

National   |   Steven Ertelt   |   Jul 8, 2005   |   9:00AM   |   WASHINGTON, DC

Partial-Birth Abortion Ban Unconstitutional, Appeals Court Rules Email this article
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by Steven Ertelt Editor
July 8, 2005

St. Louis, MO ( — A federal appeals court has ruled that the national ban on partial-birth abortions is unconstitutional. The 8th U.S. Circuit Court of Appeals said the ban does not pass constitutional muster because it does not contain an exception for the health of the mother, even though doctors say its unnecessary.

The measure, the first ban on any abortions since the Roe v. Wade ruling, has a life of the mother exception. But, members of Congress did not include a health exception because "health" can be used to validate a partial-birth abortion for virtually any reason.

However, the 8th Circuit upheld a decision by U.S. District Judge Richard Kopf, who was one of three judges to strike down the ban in separate lawsuits filed by abortion advocates.

Kopf, and judges in New York and San Francisco, both pointed to a 2000 Supreme Court decision overturning a Nebraska ban on partial-birth abortions because it, too, did not contain the disputed exception. Retiring Supreme Court Justice Sanda Day O’Connor was the deciding vote in the case.

Judge Kermit Bye of the 8th Circuit wrote that, "When `substantial medical authority’ supports the medical necessity of a procedure in some instances, a health exception is constitutionally required."

"In effect, we believe when a lack of consensus exists in the medical community, the Constitution requires legislatures to err on the side of protecting women’s health by including a health exception," he added.

However, doctors say that the three-day-long abortion procedure is never necessary in emergency health situations.

According to a Justice Department brief, the American Medical Association convened a panel to study the issue of partial-birth abortions.
The expert panel “could not find ‘any’ identified circumstance” where partial-birth abortion “was ‘the only appropriate alternative’” to preserve the health of the mother."

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.

President Bush signed the partial-birth abortion ban into law in 2003, but it has not been enforced because of three lawsuits filed by abortion advocacy groups and abortion practitioners.

The partial-birth abortion procedure was developed by Ohio abortion practitioner Martin Haskell, who admits that he performs it on mostly health women and health babies.