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ERLC, pro-lifers ask appeals court to uphold partial birth ban

WASHINGTON (BP)–The Southern Baptist Ethics & Religious Liberty Commission has joined other pro-life organizations in asking a federal appeals court to overturn a judge’s invalidation of the Partial Birth Abortion Ban Act.

The ERLC and six other organizations signed onto a friend-of-the-court brief filed by the Christian Legal Society with the U.S. Eighth Circuit Court of Appeals seeking affirmation of the 2003 law. Federal Judge Richard Kopf of Lincoln, Neb., struck down the measure, which bans an abortion procedure performed on a nearly totally delivered unborn child.

With his September ruling, Kopf was the last of three federal judges to invalidate the ban. Judges in San Francisco and New York City ruled during the summer the law was unconstitutional. The Department of Justice has appealed the rulings. The cases appeared destined to converge at the U.S. Supreme Court.

President Bush signed the ban into law last November 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 courts and blocked its enforcement.

The measure bars 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, which provides for easier removal of the baby’s head, normally occurs in the fifth or sixth month of pregnancy.

“The American people clearly find the heinous, barbarous procedure known as partial-birth abortion repugnant and have stated overwhelmingly they want it terminated in this country,” ERLC President Richard Land said after the brief was filed. “Once again, the court system, which seems to think it is above the will of the people, has chosen to strike down a law passed by a significant majority of the nation’s elected representatives.

“I hope and pray that the Eighth Circuit will overturn this egregious decision,” Land said. “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.”

In addition to the ERLC and CLS, others signing onto the brief were the Alliance Defense Fund, Christian Medical Association, Concerned Women for America, Family Research Council, Focus on the Family and National Association of Evangelicals.

In the brief filed Dec. 8 with the appeals court in St. Louis, the ERLC and its pro-life allies argue Kopf’s opinion erred in concluding a health exception for a mother is necessary in the prohibition and in determining the ban unduly burdened the right to abortion because it could affect another procedure.

The brief contends Kopf misapplied the Supreme Court’s standard for deciding if a health exception is necessary. The justices ruled in a 2000 decision striking down a Nebraska ban on partial-birth abortion that a previous high court ruling requires an exception when “substantial medical authority” supports the concern that barring a specific procedure could threaten a mother’s health. The court said, however, a state is not forced to give doctors “unfettered discretion” in selecting abortion techniques.

In his opinion, the brief says, Kopf restated the high court’s language erroneously, establishing a “different, more onerous standard.” He “effectively requires the government to demonstrate an absolute lack of any fringe medical group that shares an abstract belief that a ban on partial birth abortions could endanger women’s health,” the brief contends.

In requiring a health exception, Kopf also erred by saying evidence provided by Congress and in the trial demonstrates the “banned procedure is sometimes necessary to preserve the health of the mother,” the brief says.

The brief also denies the ban would cover standard D&E abortions, a contention Kopf made. A D&E abortion involves the dismemberment of the child while still in his mother’s womb, whereas a partial-birth abortion, also known as D&X, involves killing the child while all of its body is outside the womb except the head, the brief says.

The American Center of Law and Justice also filed a friend-of-the-court brief on behalf of 26 members of Congress asking the Eighth Circuit to overturn Kopf’s ruling.

Judicial requirements of an exception for a mother’s health have frustrated attempts to enact a meaningful prohibition on partial-birth abortion. The dilemma ban advocates 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’s ruling against Nebraska’s partial-birth ban prompted 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 Southern Baptist Convention approved resolutions condemning the partial-birth procedure in both 1996 and 2002.