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Appeals court upholds Ohio law banning partial-birth abortion

CINCINNATI (BP)–A federal appeals court based in Cincinnati ruled Dec. 17 that an Ohio law banning partial-birth abortion is constitutional.

In a 2-1 decision, a panel for the Sixth Circuit Court of Appeals overturned a lower court’s decision and ruled that the law is constitutional because it contains an exception for the health of the mother and because it specifically excludes other abortion procedures. Lawyers for the plaintiffs said they would appeal.

While the decision was unrelated to several lawsuits filed in November against the federal partial-birth abortion law, it does mean that the U.S. Supreme Court could once again be tackling the abortion issue sooner than many thought. The decision can be appealed to either the high court or the full circuit court.

The Bush administration had filed legal briefs defending the Ohio law.

The Ohio law is different from the federal law because it contains a health exception — which the U.S. Supreme Court has said is necessary. Pro-lifers argue that a health exception renders any abortion law meaningless and would be abused.

But the Ohio health exception is narrowly defined. It prohibits partial-birth abortion unless the mother’s life or health is “endangered by a serious risk.” The law defines a “serious risk” as a “medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function.”

Abortion doctor Martin Haskell, a plaintiff in the case, has said that the health exception is not broad enough.

Circuit Judge James Ryan, writing the majority opinion, said the law conforms to the decisions of two Supreme Court abortion cases — Planned Parenthood v. Casey (1992) and Stenberg v. Carhart (2000).

“We … hold that Ohio’s maternal health exception is valid because it permits the partial birth procedure when necessary to prevent significant health risks,” he wrote. “The Fourteenth Amendment, as applied in Casey and Carhart, requires nothing more.”

Dissenting judge Arthur Tarnow wrote that the narrow health definition may force “women to use riskier methods of abortion.”

Pro-lifers applauded the ruling.

“Praise the Lord,” said Richard Land, president of the Southern Baptist Ethics & Religious Commission. “It shows that there’s nothing wrong with our court system that better judges wouldn’t cure.”

Denise Mackura, executive director of Ohio Right to Life, expressed caution.

“While we are pleased that two federal judges think that Ohio’s partial-birth abortion ban is constitutional, we recognize that the real question remains whether the U.S. Supreme Court will allow any meaningful limitation on this brutal procedure under Roe v. Wade,” Mackura said.

James Bopp Jr., general counsel for the National Right to Life Committee, said the court rejected “the outrageous claim by pro-abortion advocates that the Constitution guarantees a right to kill a child who is hanging halfway outside the mother’s body for negligible and transient health reasons.”

Kate Michelman, president of NARAL Pro-Choice America — formerly the National Abortion and Reproductive Rights Action League — called the decision “a frightening snapshot of what courts comprised of anti-choice presidents’ nominees can do to basic rights like privacy and the freedom of choice.”

Partial-birth abortion involves delivering a baby feet-first while leaving the head in the birth canal. The doctor then punctures the skull and suctions the brain matter, killing the baby. The procedure is often performed on a baby that would be viable outside the womb.

The Ohio law would make partial-birth abortion a second-degree felony, although it would punish the doctor, not the woman. The law contains strong language defending the right of the unborn baby.

“The right to abortion established in Roe v. Wade … was never intended to legitimize infanticide or to deprive the state of all ability to protect fetuses who are substantially outside the body of the mother,” it states.

The Sixth Circuit covers Kentucky, Michigan, Ohio and Tennessee.

The case is Women’s Medical Professional Corporation v. Bob Taft.

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  • Michael Foust