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Appeals court rules against partial-birth abortion ban, calling it unconstitutional

WASHINGTON (BP)–A federal appeals court upheld July 8 a lower-court opinion striking down the Partial Birth Abortion Ban Act.

A three-judge panel of the Eighth Circuit Court of Appeals in St. Louis ruled unanimously that the 2003 federal law was unconstitutional because it does not include an exception to protect the health of the mother. The measure prohibits an abortion procedure performed on a nearly totally delivered unborn child normally in the fifth or sixth month of pregnancy.

The opinion was the first of three on the law due from appeals courts. Last year, federal judges in New York City, San Francisco and Lincoln, Neb., invalidated the ban in separate cases. The U.S. Justice Department appealed all three decisions. The Second Circuit in New York City and the Ninth Circuit in San Francisco have yet to issue rulings in the cases appealed to those courts.

The cases appeared destined to converge at the U.S. Supreme Court. The latest ruling against the ban comes as President Bush is contemplating whom to nominate to replace Sandra Day O’Connor on the high court. O’Connor, who retired July 1, provided the deciding vote in 2000 in a 5-4 decision that struck down a Nebraska law banning partial-birth abortion.

The Eighth Circuit’s opinion came in an appeal of a decision by federal Judge Richard Kopf of Lincoln. Kopf ruled the federal ban was unconstitutional because it lacked a health exception and imposed an undue burden on abortion rights.

The Eighth Circuit panel said there were no major differences between the current case and the high court’s Stenberg v. Carhart opinion that invalidated Nebraska’s ban. Though physicians have testified that there is no medical necessity for the banned procedure, Judge Kermit Bye wrote for the panel that “we are bound by the Supreme Court’s conclusion that ‘substantial medical authority’ supports the medical necessity of a health exception.”

The federal law would bar a procedure in which a 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 technique provides for easier removal of the baby’s head.

The Eighth Circuit “apparently would have us believe that there is a constitutional right to crush the skull of a baby that is halfway out of the mother’s body,” Alliance Defense Fund senior counsel Gary McCaleb said in a written statement. “Americans overwhelmingly reject this barbaric procedure, and it is their will, not the will of courts, that will win in the end.”

ADF joined the Southern Baptist Ethics & Religious Liberty Commission and five other organizations in signing on to a friend-of-the-court brief authored by the Christian Legal Society in support of the law.

When the brief was filed with the Eighth Circuit in December, ERLC President Richard Land said he prayed the appeals court would overturn an “egregious decision.”

“If not, we will continue the fight to take our government back from the imperial judiciary and once again establish government of the people, by the people and for the people instead of government of the judges, by the judges and for the judges,” Land said.

Bush signed the ban into law in 2003 after Congress sought for eight years to enact such a measure. Congress twice adopted bans in the 1990s only to have President Clinton veto them. After Bush signed the bill, abortion rights organizations quickly challenged the law in three federal courts and blocked its enforcement.

Supporters of a ban on partial-birth abortion have been unwilling to include a health exception because it would basically render the law meaningless. In its 1973 decisions legalizing abortion, Roe v. Wade and Doe v. Bolton, 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’s 2000 ruling against Nebraska’s ban prompted congressional pro-life members to draft the new 2003 version that sought to address a couple of issues. The federal law declared in its findings that 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 Southern Baptist Convention approved resolutions condemning the partial-birth procedure in both 1996 and 2002.

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