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2 appeals courts strike down partial-birth abortion ban

NASHVILLE, Tenn. (BP)–In cases that may be headed for the U.S. Supreme Court, two federal appeals courts Jan. 31 struck down the federal ban on partial-birth abortion, ruling as another appeals court did in 2005 that the law is unconstitutional.

Although the ruling from the Ninth Circuit Court of Appeals out of San Francisco Jan. 31 was unanimous, the ruling on the same day from the Second Circuit Court of Appeals in New York City was split 2-1, and two of the judges made a point to criticize the U.S. Supreme Court’s 2000 ruling that struck down bans on partial-birth abortion.

John M. Walker Jr., chief judge of the Second Circuit, called partial-birth abortion “deeply disturbing” and “morally repugnant.”

“[I]t is my duty to follow that precedent no matter how personally distasteful the fulfillment of that duty may be,” Walker, a nominee of the first President Bush, wrote in a concurring opinion.

President George W. Bush signed the Partial Birth Abortion Ban Act into law in 2003, although courts have prevented it from being enforced. Last summer, the Eight Circuit Court of Appeals out of St. Louis ruled the law unconstitutional, and the Bush administration subsequently appealed the decision to the U.S. Supreme Court. The latest two rulings also are expected to be appealed.

Although the high court has yet to announce whether it will hear the case, pro-lifers are hopeful it will take it up and that new Supreme Court Justice Samuel Alito will provide a critical fifth vote to uphold the ban. Alito replaced Sandra Day O’Connor, who was the key vote in the 5-4 2000 decision (Stenberg v. Carhart) that struck down Nebraska’s ban on partial-birth abortion. In that case, the high court ruled any ban must have an exception for the health of the mother. The Partial Birth Abortion Ban Act has no health exception, and all three circuit courts have cited Supreme Court precedent in striking it down.

In passing the law Congress said partial-birth abortion is never necessary to save the woman’s health. Supporters of the law also assert that a health exception would render the law meaningless, providing a huge loophole.

Partial-birth abortion, known as D&X in medical circles, is a procedure in which an abortion doctor partially delivers a late-term baby, feet first, until only the head remains in the birth canal. The doctor then splits open the head and suctions out the brain before delivering a dead child. One nurse who witnessed the procedure testified as to seeing a baby’s hands “clasping and unclasping” and its feet “kicking” before it was killed.

Judge Chester J. Straub, a nominee to the Second Court by President Clinton, dissented, arguing that the court owes “deference to Congress’s factual findings” that “D&X is never medically necessary and that there is no ‘credible medical evidence’ to the contrary.” Straub also asserted that the government “has a compelling interest in protecting the line between abortion and infanticide.”

“[A]llowing a physician to destroy a child as long as one toe remains within the mother would place society on the path towards condoning infanticide,” Straub 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.”

Jon O. Newman, who wrote the majority opinion, was nominated to the Second Circuit by President Carter.

In writing his concurring opinion, Walker criticized the role federal courts — led by the Supreme Court — have played in abortion cases.

“In the end, I cannot escape the conclusion that, in these abortion cases, the federal courts have been transformed into a sort of super regulatory agency — a role for which courts are institutionally ill-suited and one that is divorced from accepted norms of constitutional adjudication,” Walker wrote.

“… 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?”

The Ninth Circuit, which issued a 3-0 decision, generally is considered the most liberal appeals court in the U.S. Two of the justices in the opinion were nominated by President Clinton, the other by President Carter.

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  • Michael Foust