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Appeals court strikes down partial-birth abortion bans

WASHINGTON (BP)–The fate of widespread efforts to prohibit an abortion technique performed on partially delivered babies now is in the hands of the U.S. Supreme Court., after rulings by the Eighth U.S. Circuit Court of Appeals that partial-birth abortion bans in the states of Arkansas, Iowa and Nebraska were unconstitutional.
The three-judge panel’s Sept. 24 decisions were expected by supporters of the legislation.
Mary Spaulding Balch, the National Right to Life Committee’s state legislative director, said she was “disappointed but not surprised.”
“It’s the normal course of events for pro-life legislation to go the full gamut” to the Supreme Court.
Balch would not forecast the result on a high court with both strongly pro-life and pro-choice justices.
“I’ve given up predicting the Supreme Court,” she said. “When I think they’re going to do something, they do the opposite.
“But I do think the American people are crying out for justice” on this issue, Balch said. The Supreme Court’s handling of partial-birth abortion will show how far the justices will “go to protect a woman’s right to kill her unborn child or, in this instance, a child in the process of being born,” she said.
The Eighth Circuit’s rulings were the latest in a series of setbacks for federal and state bans on a procedure that has horrified most Americans, including many pro-choicers, since its practice was revealed earlier in this decade. Congress twice has adopted a ban only to have President Clinton use his veto power both times. Each time, the House of Representatives overrode his veto, but the Senate vote fell short.
Twenty-seven states have passed partial-birth prohibitions similar to the federal one, but only eight are in effect. Nearly all of the others have been struck down or blocked by courts.
The procedure targeted by the laws is performed on almost totally delivered babies normally in the fifth or sixth month of pregnancy. The method involves the delivery of an intact baby feet first until only the head is left in the birth canal. The doctor pierces the base of the baby’s skull with surgical scissors, then inserts a catheter into the opening and suctions out the brain. The collapse of the skull enables easier removal of the dead child.
The Eighth Circuit panel ruled the laws not only constituted an “undue burden” on women seeking abortions but were too broad.
The Arkansas law makes it a crime to “partially vaginally deliver a living fetus before taking the life of the fetus and completing the delivery,” according to The Arkansas Democrat-Gazette. The definition of partial-birth abortion, or dilation and extraction abortion, by the American College of Obstetricians and Gynecologists is “much narrower,” the panel wrote, according to The Democrat-Gazette. The law’s use of “partial delivery” instead of more specific language also covers other abortion methods that are “constitutionally protected” in which the child is dismembered, the panel said, according to the newspaper.
“Obviously, we disagree,” Balch said. “A dismemberment abortion takes place inside the woman,” while a partial-birth abortion does not.
“What they’re asking us to do is if we were drafting a bill to ban murder, they’re asking us to ban the use of a knife, a gun or a rope,” she said. “When you get too specific, it would be simple for someone” to avoid a murder charge.
The law prohibits a procedure in which a doctor “intentionally partially delivers a baby and then kills the baby. I don’t know how you can get more specific than that and reach the procedure you are trying to ban.”
The judges’ reasoning is “the argument of our opponents,” Balch said.
A Southern Baptist bioethicist expressed doubt the bans’ wording is the problem for opponents of such legislation.
“If the question is truly one of appropriate wording, we should be able to find terminology which will be agreeable to both sides,” said Ben Mitchell, a biomedical consultant for the Southern Baptist Ethics & Religious Commission. “However, I suspect the problem is not semantic but substantive. Pro-abortionists do not want any restrictions on abortion, even on a procedure as clearly immoral as partial-birth abortion.
“It seems impossible, but it is apparently true that unborn children are so despised by pro-abortionists that they cannot see that partial-birth abortion is infanticide.
“Our only option is to be vigilant. Christians must continue to work diligently for the rights of the unborn who cannot speak for themselves,” said Mitchell, professor of bioethics and contemporary culture at Trinity Evangelical Divinity School in Deerfield, Ill.
The only states with partial-birth abortion bans in effect are Indiana, Mississippi, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee and Virginia, according to the National Right to Life Committee.
Appeals of decisions on partial-birth abortion bans are pending in the First, Third, Fourth, Fifth, Sixth and Seventh federal appeals courts, Balch said.
Congress is expected to take up the federal ban again in October, Balch said.
Last year, the Senate fell only three votes short of the two-thirds majority needed to override a veto. The president vetoed the legislation in both 1996 and ’97.
The 1996 veto by Clinton, a member of Immanuel Baptist Church, a Southern Baptist congregation in Little Rock, Ark., prompted Jim Henry, then SBC president, and 11 former SBC presidents to ask the president in a letter to “repent of your veto.”
The SBC passed a resolution at its 1996 meeting supporting the legislation and disapproving of Clinton’s first veto.
In May 1997, Tom Elliff, then Southern Baptist Convention president, and nine former SBC presidents sent a letter to Clinton asking him to reconsider his “continued defense of the killing of living premature babies by the brutal partial-birth abortion method.”
There are no verifiable figures for the frequency of such abortions, but estimates are the procedure occurs at least 3,000 to 5,000 times a year in this country. In opposing the bill, abortion advocates previously had contended it was used only about 500 times annually.