D & X / PBA PROCEDURES
RESTRICTIVE STATE LAWS
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.
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
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.
||Arkansas 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.|
||Colorado 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.|
||Iowa 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."|
||Louisiana 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."|
||Michigan 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|
||Nebraska: 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|
||New 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|
||Ohio 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.|
||1996: 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.
||2004: 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.
Virginia passed two laws, one In 1988 and one in 2003. Both were
declared unconstitutional by the courts. More
||Washington state 1998: At the 1998-NOV-3 elections,
Washington voters defeated Initiative 694 which would have banned
||Wisconsin 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.
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.
A copy of the Michigan law is at: http://members.aol.com/abtrbng/D&Xbami.htm
A copy of the Ohio law is at: http://members.aol.com/abtrbng/o2919-15.htm
A copy of the Utah law is at: http://members.aol.com/abtrbng/u310-5.htm
"Judge overturns NJ law banning late-term abortion procedure,"
Associated Press, 1998-DEC-9.
Court decision: "Women's Medical Professional Corp. v. Voinovich, 130 F.3d 187
(1997)" at: http://members.aol.com/abtrbng/wmpc.htm
"Legislation would limit Partial Birth Abortion appeals,"
Conservative News Service, at: http://www.mcjonline.com/news/00/20000209c.htm
Lisa Rein, "Va. Passes Ban on Type Of Abortion: Exception Allowed For
Woman's Health," Washington Post, 2002-MAR-8, Page A01, at:
Tyler Whitley, "Abortion measure reaches governor ; Senate approves
bill on 26-12 vote," Times-Dispatch, 2002-MAR-8, at:
Amy Bailey, "Michigan Governor Vetoes Abortion Bill,"
"Gov. Warner Vetoes Ban on Partial-Birth Abortions: Legislature
Override Attempt Fails," VSHL Lifesaver, 2002-JUN, at:
"Judge declares Michigan abortion law illegal," Massachusetts Family
Institute, E-Alert, 2005-SEP-15.
Pauline Chang " 'Legal Birth Definition Act' passes in Michigan - Pro-lifers
celebrate 'people's victory," CrossMap News, 2005-JUN-11, at:
Copyright ©1996 to 2005 by Ontario Consultants on Religious
Last updated: 2004-SEP-15
Author: B.A. Robinson