WASHINGTON (BP)–Opponents of a federal ban on partial-birth abortion have completed a sweep at the federal district court level.
Federal judge Richard Kopf struck down the Partial Birth Abortion Ban Act as expected Sept. 8 in his Lincoln, Neb., courtroom. In his opinion, Kopf permanently blocked the law’s enforcement and ruled it failed at least two constitutional tests. Most notably, it lacked an exception for the mother’s health, he said.
Kopf’s decision followed similar rulings from federal judges in two other districts. Phyllis Hamilton of San Francisco and Richard Casey of New York City also invalidated the 2003 law, which prohibits an abortion procedure on a nearly totally delivered unborn child.
In a statement after the opinion’s release, the Department of Justice, which defended the ban in all three courts, reiterated its intention to “continue to defend the law to protect innocent new life from partial birth abortion.” The department already has appealed Hamilton’s ruling to the Ninth Circuit Court of Appeals.
Pro-life leaders expressed disappointment but not surprise at the decision, especially since Kopf had struck down Nebraska’s partial-birth abortion ban in 1997.
“What about a health exception for the unborn child?” asked Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission. “There is, and always has been, an exception involving the life of the mother. What about an exception for the unborn child who dies every time there is a partial-birth abortion? It’s time that the government of the people, by the people and for the people insists that unborn human life be revalued.”
Jay Sekulow said Kopf ignored the “expert testimony of well recognized and highly respected medical experts simply because they had not performed abortions.”
“This conclusion is not only legally flawed but shows the hostility the court exhibits to medical experts who have respect for human life,” said Sekulow, chief counsel of the American Center for Law and Justice.
The cases appear destined to converge at the Supreme Court, which will be problematic for the law’s supporters without a change in justices.
“The problem — with a capital P — remains the majority of the Supreme Court,” Land said. “We are not going to be able to eliminate this heinous, barbaric procedure until we change the makeup of the current Supreme Court.”
Kopf’s ruling struck down a law that is less than a year old. Last November, President Bush signed the ban into law. It prohibited a procedure that normally occurs in the fifth or sixth month of pregnancy. The abortion doctor delivers an intact baby, feet first, until only the head is left in the birth canal. The doctor pierces the base of the infant’s skull with surgical scissors, then inserts a catheter into the opening and suctions out the brain. The collapse of the skull provides for easier removal of the baby’s head.
In his ruling, Kopf said the law also was unconstitutional because it would bar an abortion method known as D&E. He ruled, however, his opinion did not apply when the unborn baby is “indisputably viable.” He also refused to issue a national injunction against the law.
His requirement of an exception for the mother’s health continued to frustrate the law’s advocates in their attempt to enact a meaningful prohibition. The dilemma they have been unable to solve is this: If they pass a partial-birth abortion ban without a health exception, the courts strike it down; if they approve a ban with a health exception, it is ineffective because of the judiciary’s definition of “health.”
In its 1973 decisions legalizing abortion, the Supreme Court defined maternal health so expansively it had the practical effect of permitting abortion for any reason throughout all stages of pregnancy.
The Supreme Court upheld lower court rulings against Nebraska’s partial-birth ban in 2000, prompting congressional pro-life members to draft a new version that sought to address a couple of issues, including the justices’ ruling the ban needed an exception for maternal health reasons. The new federal law declared in its findings the method is neither safe for women nor necessary to preserve their health, based on the testimony of doctors. It included an exception to protect the mother’s life.
The length of Kopf’s opinion –- 474 pages –- prompted him to apologize to the appeals court judge “who has to slog through this thing.”
The trials in Lincoln, San Francisco and New York City all started March 29. Hamilton issued her ruling in June, while Casey released his opinion in August.
In addition to individual doctors who perform abortions, the Center for Reproductive Rights challenged the law in the Lincoln court, the Planned Parenthood Federation of America in San Francisco and the National Abortion Federation in New York.
Congress twice adopted partial-birth abortion bans in the 1990s only to have President Clinton veto them both times. In both 1996 and 1998, the House of Representatives achieved the two-thirds majorities necessary to override vetoes, but the Senate fell short. The Nebraska ban struck down by the high court was patterned after the federal version that never became law.
The Southern Baptist Convention approved resolutions condemning the partial birth procedure in both 1996 and 2002.