Page 1
Ninth Circuit Panel Strikes Down ‘Partial-Birth’ Abortion Ban
From Staff and Wire Service Reports
The Ninth U.S. Circuit Court of Appeals yesterday struck down the federal government’s ban on the procedure called ‘partial-birth’ abortion, saying the law is unconstitutional for several reasons, including the lack of an exception to protect mothers’ health.
The Ninth Circuit became the second federal appellate court to reject the ban signed into law by President Bush in 2003, which has never been enforced because of preliminary injunctions.
The third such ruling came just hours later, as the New York-based Second Circuit also said the law was unconstitutional. The Eighth Circuit reached the same conclusion last July, upholding a ruling by a U.S. district judge in Nebraska.
The U.S. Supreme Court has already been asked to review the Nebraska ruling.
Intact D&E
The law banned a procedure known to doctors as intact dilation and extraction. The fetus is partially removed from the womb, and the skull is punctured or crushed.
The procedure is generally performed in the second trimester.
The Ninth Circuit ruling affirmed an injunction issued by U.S. District Judge Phyllis Hamilton of the Northern District of California at the behest of the Planned Parenthood Federation of America and its Bay Area affiliate. The judge found that many doctors prefer the banned procedure to other methods and that it is in fact the safest medical option for some women in some circumstances, a position asserted by the American College of Obstetricians and Gynecologists.
In concluding that the district judge was correct, Judge Stephen Reinhardt wrote for the Ninth Circuit that the statute fails on three grounds—the lack of a mothers’ health exception, the placing of an undue burden on the right to obtain an abortion before the fetus becomes viable, and the vagueness of the statutory language, which the judge said could be read as banning other types of late-term abortion.
Reinhardt cited two Supreme Court cases, Stenberg v. Carhart (2000) 530 U.S. 914, and Planned Parenthood of Southeastern Pa. v. Casey, (1992)
505 U.S. 833, both of which held that a ban on a particular type of abortion procedure is unconstitutional if an exception for the health of the mother is not included.
Nebraska Law
Stenberg involved a Nebraska law similar to the law struck down yesterday, the Partial-Birth Abortion Ban Act of 2003. Congress sought to address the flaw that the high court found in the Nebraska law by making a finding that the procedure is never necessary to protect the health of the mother.
Reinhardt, however, said the court was not required to defer to that finding because it was clearly erroneous; the record of the proceedings before Congress, the judge said, shows that there is no medical consensus on the issue.
“The government all but admits in its reply brief that no medical consensus exists regarding the need for the prohibited procedures to preserve the health of women in certain circumstances,” he wrote.
The judge went on to say that an injunction barring all enforcement of the statute was the correct remedy.
“We are reluctant to invalidate an entire statute,” Reinhardt wrote. “However, after considering all of the obstacles to our devising a narrower remedy, we conclude that such is our obligation.”
Judges Sidney Thomas and William Fletcher joined in the opinion.
Sharp Dissent
The Second Circuit ruling was marked by an unusually sharp dissent by Judge Chester J. Straub. The judge said he believed Congress’ determination that the procedure was never medically necessary to protect a women’s health was well founded and supported by a lower court ruling.
“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,” he said.
He added: “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.”
The New York decision affirmed a 2004 ruling by a judge who upheld the right to perform the procedure even as he described the procedure as “gruesome, brutal, barbaric and uncivilized.”
The ban, which President Clinton twice vetoed, was seen by abortion rights activists as a fundamental departure from the Supreme Court’s 1973 precedent in Roe v. Wade. But the Bush administration has argued that the procedure is cruel and unnecessary and causes pain to the fetus.
Heather Tasker, a spokeswoman for the Justice Department, said the government had no immediate comment.
Talcott Camp, a lawyer who argued the case in New York for the ACLU’s Reproductive Freedom Project, called the San Francisco ruling “a terrific decision.”
“It is a great day for doctors. This means they can continue to provide care for their patients, focusing on their patients’ well being first and foremost. Congress should not be passing laws to interfere with women’s and doctor’s decision making,” she said.
After reading the New York ruling, Camp said she did not know how the Supreme Court might view the dissent.
“The ruling of the court is what it is, which is that a statute that endangers women’s health is unconstitutional,” she said.
National Abortion Federation President Vicki Saporta said she was encouraged that the Supreme Court recently ruled in a similar case that abortion laws had to have an exception to protect the health of women.
“We’re certainly concerned about the shift in the balance of the Supreme Court but the court has never abandoned women’s health,” Saporta said.
U.S. Sen. Dianne Feinstein, D-California, said in a statement:
“The Ninth Circuit did the right thing today. Roe v. Wade made it clear that a woman’s life and health must be protected. Those pushing for a ban on what they call partial birth abortion failed to succinctly define the medical procedure they seek to ban and they have refused to protect the woman’s health. For these reasons, the Ninth Circuit struck down the law.”
The Ninth Circuit case is Planned Parenthood Federation of America, Inc. v. Gonzales, 04-16621.
Copyright 2006, Metropolitan News Company