July 9, 2005
Appeals Court Voids Ban on 'Partial Birth' Abortions
By JULIA PRESTON
A federal appeals court yesterday upheld a ruling by a lower court judge
striking down the Partial-Birth Abortion Ban Act, which bars a method of
abortion generally used after the first trimester.
The decision, by a three-judge panel of the United States Court of
Appeals for the Eighth Circuit, in St. Louis, was the first that an
appeals court has issued on the ban, which Congress approved in November
2003 with the strong backing of President Bush.
The ruling, written by Judge Kermit Edward Bye and joined by Judges James
B. Loken and George G. Fagg, found the law unconstitutional because,
while making an exception to the ban to protect the life of a pregnant
woman, it made no such exception to preserve her health.
That an appeals court has now ruled on the matter moves the law one step
closer to a likely review by the Supreme Court, perhaps in the coming
term. In a rare point of agreement between adversaries in the abortion
debate, advocates on both sides said the stakes had now been raised even
further in Mr. Bush's selection of a nominee to succeed Justice Sandra
Day O'Connor.
The Eighth Circuit's ruling rests heavily on a decision by the Supreme
Court, which, in Stenberg v. Carhart five years ago, struck down such a
ban that had been enacted by Nebraska. Before Justice O'Connor announced
her retirement last week, the balance on the court in favor of a
constitutional right to abortion was 6 to 3. But in Stenberg, the
majority was only 5 to 4, with Justice Anthony M. Kennedy voting to
sustain the state ban and Justice O'Connor's vote making the majority.
The appeals court's decision yesterday "only underscores the fact that
the successor to Justice O'Connor will cast the deciding vote on whether
this barbaric partial-birth-abortion practice will continue," said
Douglas Johnson, legislative director of the National Right to Life
Committee.
Nancy Northup, president of the Center for Reproductive Rights, which
brought challenges to the federal and Nebraska laws, said the ruling
showed that the nomination process would be "critical." Justice O'Connor
played a pivotal role in sustaining rulings that "women's health has to
be paramount," Ms. Northup said.
Like the challenge to the state law, the case decided yesterday was
brought in Nebraska. It was one of three in which abortion rights groups
sued to overturn the federal legislation as soon as Mr. Bush signed it
into law. In the two other cases, lower courts in California and New York
likewise overturned the law; those decisions, too, are being appealed by
the Bush administration.
The Eighth Circuit's decision upheld a ruling by Richard G. Kopf, a
federal district judge in Nebraska.
"Because the act does not contain a health exception, it is
unconstitutional," the appeals court wrote.
The panel did not go further to analyze a second point by Judge Kopf, who
had said the ban imposed an "undue burden" on a woman's right to
abortion.
The Justice Department can now request that the full Eighth Circuit court
hear the case, or it has 90 days to file an appeal directly with the
Supreme Court.
The law forbids a method of abortion that has been infrequently used, in
rare or unexpected complications of pregnancy mainly in the second or
third trimester. Sometimes called D and X, for dilation and extraction,
it entails partly extracting an intact fetus from a woman's uterus and
killing it by collapsing and removing the brain from the skull so that
the fetus can pass through the birth canal.
Opponents of abortion refer to the method as partial-birth abortion and
denounce it as brutal and uncivilized. Opponents of the law, on the other
hand, do not primarily defend the procedure itself, but attack the
measure on the ground that it curtails a larger right to abortion.
The appeals court yesterday left a small door open for a ban on the
procedure in the future. The judges observed that there was a fierce
dispute among doctors about whether the procedure was safe and medically
necessary, and they lamented the "dearth of studies" on the subject. They
said that medical advances might one day make the practice obsolete and
that then a ban might be widely supported by doctors and would no longer
be unconstitutional.
http://www.nytimes.com/2005/07/09/national/09abort.html?ex=1278561600&en=
874e41beda66608c&ei=5088&partner=rssnyt&emc=rss
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