by Steven Ertelt
January 31, 2006
Washington, DC (LifeNews.com) — Two federal appeals courts issued rulings on Tuesday declaring the federal ban on partial-birth abortions unconstitutional because it doesn’t have a health exception. The rulings set up a possible Supreme Court battle later this year.
Both the 9th U.S. Circuit Court of Appeals and the 2nd Circuit issued similar rulings. A three judge panel of the 9th Circuit ruled unanimously and the 2nd Circuit ruling came in a two to one decision, with a particularly strong dissent by Judge Chester Straub.
Straub said the court’s should defer to Congressional findings showing that the three-day long partial-birth abortion procedure is never necessary to protect the health of a woman. In fact, the abortion procedure can cause medical and emotional problems.
"Allowing a physician to destroy a child as long as one toe remains within the mother would place society on the path towards condoning infanticide,” the judge wrote.
"I find the current expansion of the right to terminate a pregnancy to cover a child in the process of being born morally, ethically and legally unacceptable," Straub added.
Writing for the 2nd Circuit, Chief Judge John Walker said the court had to rely on Supreme Court precedent in a 2000 case that invalidated a Nebraska ban for the same reason.
The court is "compelled by a precedent to invalidate a statute that bans a morally repugnant practice, not because it poses a significant health risk, but because its application might deny some unproven number of women a marginal health benefit.”
Walked said the Supreme Court should ask abortion advocates challenging the law to prove how women are harmed by it.
"Is it too much to hope for a better approach to the law of abortion — one that accommodates the reasonable policy judgments of Congress and the state legislatures without departing from established, generally applicable, tenets of constitutional law?” Walker wrote.
According to an AP report on the decision, the 9th Circuit, regarded as one of the most pro-abortion appeals courts in the nation, claimed the law was so vague it had to be thrown out.
The Supreme Court could have accepted a prior decision from an appeals court striking down the law when it announced earlier in January new cases it would hear. The high court may be more likely to hear a case now that the other appeals courts have ruled on all three of the lawsuits abortion advocates and practitioners filed to stop the ban from going into effect.
President Bush signed the law in 2003 but it never went on the books because of the lawsuits.
Pro-life advocates hope newly confirmed Justice Samuel Alito will provide the fifth vote needed to uphold the ban. He replaces pro-abortion Justice Sandra Day O’Connor, the deciding vote in the 5-4 decision striking down the Nebraska law.