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D & X / PBA PROCEDURES

RESTRICTIVE STATE LAWS

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Disclaimer:

The following is information only, not legal advice. Do not make any decisions on the basis of this essay. If you have a personal legal situation, you may want to consult a lawyer who specializes in this area. This text is believed to be accurate when it was last edited.

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Nearly thirty states have passed anti-D&X laws. We are aware of laws in: Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana, Michigan 1, Mississippi, Montana, Nebraska, New Jersey, Ohio 2, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Wisconsin, and Virginia.

With the exception of Ohio 2, Louisiana and Utah 3, most laws were largely based on the unsuccessful federal 1996 bill. They all allow D&Xs if required to save the life of the woman. Most do not permit D&Xs if needed to prevent serious or disabling health repercussions to the woman. The laws in Massachusetts and Indiana ban state funding of D&Xs.

For some reason that we have not been able to discern, many of the laws are so vaguely worded that they might be interpreted by a court to ban a broad range of abortions -- including those legalized by the U.S. Supreme Court in its 1973 decision, Roe v. Wade. Since most legislators are lawyers, they must be aware that these laws are unconstitutional, and would never stand up in court. Yet these legislators continue to propose and pass these laws, knowing that they will be suspended or overturned at the first court challenge -- often within minutes of signing into law.

Many of these laws have been or are being challenged by pro-choice groups. Courts either declared the laws unconstitutional or suspended them until the lawsuits were resolved. In mid-2000, the U.S. Supreme Court ruled that the Nebraska law was unconstitutional. This decision made all of the remaining state laws that were passed previously null and void.

bulletArkansas 1998: A state law assigned penalties of $10,000 and 6 years in jail for physicians who performed D&Xs. The law was declared unconstitutional by a federal judge in 1998-NOV. The court found that the law is unconstitutionally vague and could have the effect of banning all abortions. It imposed an undue burden on a woman who is seeking an abortion.
bulletColorado 1998: At the 1998-NOV-3 elections, the Colorado public rejected a proposal which would have banned D&X procedures. The vote was very close.
bulletIowa 1998: In late 1998-DEC, U.S. District Judge Robert Pratt declared the state's anti-D&X law unconstitutional. He ruled that the law was too vague and could be applied to other abortions. He wrote: "Because physicians are forced to guess at the act's meaning, they are likely to steer far wider of the unlawful zone than if the act were more clear."
bulletLouisiana 1999: In 1999-MAR, U.S. District Judge Thomas Porteous declared the state's anti-D&X law to be unconstitutional. He said that the law is too broad; it could be interpreted to ban all abortions. He said: "This act's broad language seems to purposefully create confusion and ambiguity."
bulletMichigan 1996, 1999, 2003 & 2005: Anti D&X laws were declared unconstitutional by the courts. In 1996 and 1999 the laws failed because of a lack of an exception clause to protect the woman from a devastating health impact. Governor Jennifer Granholm (D-MI) vetoed a third bill on 2003-OCT-10, which also lacked a health clause. Opponents of the bill say that the bill was worded so broadly that it could restrict all abortions. The bill was opposed by two professional medical associations. The bill took a novel approach. It defined birth as occurring when any part of a fetus emerges from a woman's body. This would effectively convert any D&X procedure into homicide. The governor vetoed the bill because: "federal courts repeatedly have declared unconstitutional efforts to end partial birth abortion." 9 On 2005-JUN-09, the Legislature passed a new anti-D&X law: the Legal Birth Definition Act. It took the same novel approach. On 2005-SEP-12, U.S. District Court Judge Denise Page Hood ruled that the law places an "undue burden" on pregnant women. She determined that the law is confusing and vague, and its exceptions for the health or life of a mother are meaningless and unconstitutional. She wrote: "The act does not describe any specific procedure to be banned. The act also does not distinguish between induced abortion and pregnancy loss." 11,12 More information
bulletNebraska: The state passed a law in 1997, which was immediately suspended by a court injunction. It would have criminalized all D&Xs on live fetuses, even if needed to prevent disabling injuries to the woman. Simon Heller, an attorney for the Center for Reproductive Law and Policy in New York City, charged, "The campaign against partial birth abortion has simply been a campaign of deception orchestrated to demonize abortion in the eyes of the public." It was declared unconstitutional in 1999-SEP by a federal court. On 2000-JAN-16, the U.S. Supreme Court announced that it would hear an appeal in this case. They declared that the Nebraska anti-D&X law was unconstitutional, because it did not provide an exception to protect the health of the pregnant woman. This decision had the effect of striking down all of the D&X abortion laws that had been previously passed by 31 states. More details
bulletNew Jersey 1997: Governor Christie Whitman vetoed the state bill because it was clearly unconstitutional. The legislators overrode the veto in 1997-DEC. On 1998-DEC-8, U.S. district Judge Anne Thompson declared the state law unconstitutional. She criticized the ambiguous wording of the law and its scope: it could be interpreted as banning all abortions in the state. It was also unconstitutional because it did not provide an exception if the mother's health was in jeopardy. An appeal is likely. 4
bulletOhio 1995: The bill was passed on 1995-AUG-16 and was to have gone into effect on NOV-14. 2 It banned all D&Xs, at any stage of pregnancy, whether performed on a pre-viable or viable fetus. It also criminalized all abortions on viable fetuses unless needed to "prevent the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman." The law defined a fetus of 24 weeks gestational age as viable. At 22 weeks, the fetus was assumed to be viable unless the physician determined otherwise. The 6th U.S. Circuit Court of Appeals found that all three main sections of the act were unconstitutional. A temporary restraining order was issued by the District Court on NOV-13; this was followed up by a preliminary injunction on DEC-13. This was converted to a permanent injunction on 1996-JAN-12. 5 On appeal, the Supreme Court declined to review the case.
bulletUtah:
bullet1996: The legislature passed an anti D&X law which was unusual, because it provided an exception to allow the procedure if needed to preserve the woman's health. As a result, it was never challenged in court.
bullet2004: On JAN-26, the Utah Senate voted overwhelmingly to amend the 1996 law to eliminate the health exemption. This basically converts it into a Nebraska-style law that the U.S. Supreme Court has already ruled unconstitutional. It will be voted upon by the House later in 2004. Senator Bill Wright, (R-Elberta) denounced "abortion by convenience" as having a degrading effect on society. He drew a parallel with the Nazi Holocaust. Karrie Galloway, head of Planned Parenthood in Utah said: "I just don't know what will happen with this, it is just so blatantly unconstitutional...The thought that we're so rigid about this that we're unwilling to consider a woman's health is embarrassing...This must be politics, because I'm not sure who we're protecting." 10

This essay continues below.

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bulletVirginia: Virginia passed two laws, one In 1988 and one in 2003. Both were declared unconstitutional by the courts. More details.
bulletWashington state 1998: At the 1998-NOV-3 elections, Washington voters defeated Initiative 694 which would have banned D&X procedures.
bulletWisconsin 1998: Their law was interpreted by abortion providers as being so broadly worded that it might cover all abortions performed in the state. The law provides for life imprisonment for any physician performing a D&X procedure. Abortion providers in Wisconsin, being unwilling to risk going to jail for the rest of their lives, closed down clinics early in 1998-MAY. The 9th Circuit Court of Appeals blocked the law from taking effect until a court case is resolved. The Court of Appeals argued that the law appears to be unconstitutional because it does not contain exceptions in cases where the fetus could not survive outside the woman's body or when the procedure is necessary in order to protect the woman's health.

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Problems faced by legislators:

As noted above, most state legislators must be aware that the bills that they pass will be declared unconstitutional by the courts before they come into effect. However, if they craft a bill which would meet the U.S. Supreme Court requirement for an exception in the case of a threat to the woman's health, then their law would probably apply only to very unusual cases -- perhaps never.

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References:

  1. A copy of the Michigan law is at: http://members.aol.com/abtrbng/D&Xbami.htm
  2. A copy of the Ohio law is at: http://members.aol.com/abtrbng/o2919-15.htm
  3. A copy of the Utah law is at: http://members.aol.com/abtrbng/u310-5.htm
  4. "Judge overturns NJ law banning late-term abortion procedure," Associated Press, 1998-DEC-9.
  5. Court decision: "Women's Medical Professional Corp. v. Voinovich, 130 F.3d 187 (1997)" at: http://members.aol.com/abtrbng/wmpc.htm
  6. "Legislation would limit Partial Birth Abortion appeals," Conservative News Service, at: http://www.mcjonline.com/news/00/20000209c.htm
  7. Lisa Rein, "Va. Passes Ban on Type Of Abortion: Exception Allowed For Woman's Health," Washington Post, 2002-MAR-8, Page A01, at:  http://www.washingtonpost.com/
  8. Tyler Whitley, "Abortion measure reaches governor ; Senate approves bill on 26-12 vote," Times-Dispatch, 2002-MAR-8, at: http://www.timesdispatch.com/
  9. Amy Bailey, "Michigan Governor Vetoes Abortion Bill," NewsDay.com, at: http://www.newsday.com/
  10. "Gov. Warner Vetoes Ban on Partial-Birth Abortions: Legislature Override Attempt Fails," VSHL Lifesaver, 2002-JUN, at: http://www.vshl.org/
  11. "Judge declares Michigan abortion law illegal," Massachusetts Family Institute, E-Alert, 2005-SEP-15.
  12. Pauline Chang " 'Legal Birth Definition Act' passes in Michigan - Pro-lifers celebrate 'people's victory," CrossMap News, 2005-JUN-11, at: http://news.crossmap.com/

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Copyright 1996 to 2005 by Ontario Consultants on Religious Tolerance.
Last updated: 2004-SEP-15

Author: B.A. Robinson

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