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 | Nancy Northup, president of The Center for Reproductive Law and Policy, had earlier said on 2003-FEB-13 that the House bill was still unconstitutional and was written so broadly that other types of abortion would be affected. She said: "The Supreme Court has already struck down this abortion ban, so it doesn't matter how many times Congress passes it - it will remain unconstitutional." 1 |
| Dian Harrison of Planned Parenthood said: "President Bush intends to put the health and welfare of women in jeopardy." |
| Priscilla Smith, an attorney for the Center for Reproductive Rights, said: "We want the judge to be in a position to issue an order as soon as the bill is signed." |
| Douglas Johnson of the National Right to Life Committee said: "Just in time for Halloween, these groups argue that Roe v. Wade guarantees the right to deliver most of a living premature infant, in the fifth and sixth months of pregnancy, and then shove scissors through her skull." 2 |
The Center for Reproductive Law and Policy, acting as an agent for a number of physicians, included the following arguments in its request for an injunction:
| "The Act must be enjoined and declared unconstitutional because it
suffers from the identical two flaws as the Nebraska statute struck down by
this Court and by the United States Supreme Court...
| ||||
| The Act also contains an inadequate exception to save the life of the woman....thus [it] 'imposes an undue burden on a woman's ability' to choose abortion. | ||||
| Alternatively, the Act is so vague that it fails to give physicians fair warning of which abortion procedures are prohibited. | ||||
| Thus, the Act violates the rights of Plaintiffs and their patients to privacy, bodily integrity and autonomy, liberty, life, due process, and equal protection guaranteed by the Fifth Amendment of the United States Constitution." 3 |
Within an hour of the bill signing, U.S. District Judge Richard Kopf held a hearing on a lawsuit challenging the new law. He said, "It's probably likely I'm going to issue an injunction. I doubt it will be nationwide." 4 The temporary injunction was issued; it applies to four abortion providers licensed in Nebraska and twelve other states. He noted that a government lawyer had explained at a hearing that the medical community remains divided over the issue and that Congress did not reach a consensus. He concluded "that it is substantially likely" that the law will be found unconstitutional.
The next day, 2003-NOV-6, federal judge Richard Casey in New York City, NY suspended the law for ten days. Douglas Johnson, of the National Right to Life Committee, said that the ruling was "not surprising but it is distressing...It means that partly born babies will continue to die at the point of 7-inch scissors. Certainly these judicial orders severely impede the government's ability to protect these premature infants." Anthony Romero, of the American Civil Liberties Union (ACLU), said that the ACLU was "enormously gratified but not surprised that that law appears now to be unconstitutional." Talcott Camp, an ACLU attorney, said the organization got calls from worried physicians after the law took effect Wednesday. They "were indeed panicked at the prospect of having to face criminal prosecution for providing the absolute best medical care they can...."We're awfully glad to be able to protect women all over the country against this dangerous, inappropriate intrusion by the government into their private, medical decision," she said...We were confident that this law would be temporarily enjoined because it is so obviously dangerous and unconstitutional. [It] would be quite troubling indeed if the Justice Department attempted to enforce" the ban while the challenges were pending. "
Later that day. Judge Phylis Hamilton in San Francisco, CA also granted a temporary injunction. 5
Is the law is a positive development? A debate:
There are conflicting comments:
| According to Christianity Today magazine, "Prolife groups agree that the Partial-birth abortion Ban Act of 2003, which President Bush has promised to sign into law, may not save a single life. While it bans one form of abortion, doctors who want to get around the ban will merely begin to use another late-term procedure. Additionally, a long legal battle awaits, which may prohibit enforcement of the ban for years to come. But prolifers still believe it is a big step forward." 6 |
| Tony Perkins, president of the Family Research Council said: "I think it's a major victory for pro-life Americans. This is the first time in 30 years that we've seen reflected in public policy the cultural shift that has been taking place, and that is back toward respecting life....We have come with our toes to the line of crossing over into barbarism, and we've said we're not going to go there." |
|
Richard Cizik, president of governmental affairs for the National Association of Evangelicals said: "Is [the ban] significant in its own right? Of course, for the simple reason that evangelicals have learned over the years that we have to win this [battle to criminalize all abortion] incrementally." He continued: "it is important because success breeds success. We learned that with the passage of the International Religious Freedom Act in the 106th Congress, the Freedom from Trafficking Act in the 107th Congress; and in the 108th, we passed the Prison Rape Elimination Act. This is all part of a broad-based human rights quest that resembles the efforts of our evangelical forbear William Wilberforce, who led the fight against slavery. Its significance exceeds the actual saving of human life. It is part of a bigger picture that needs concrete victories, which breeds success on other issues. You can't discount it for what the opponents might say. It's a step." |
|
Mark Crutcher, founder and president of Life Dynamics, said: "As we're celebrating this perceived victory, we need to remember that a ban on partial-birth abortion does not save the life of one single baby. Every baby that would have been killed with partial-birth abortion will be killed with another procedure." He regards the PBA to be a cover for pro-choice politicians. They can inform voters that they voted for the bill even as they know that the bill will not reduce abortions. Crutcher explained: "The Supreme Court has ruled that unless you have an exception for health in it, it's unconstitutional." In common with the vast majority of pro-life advocates, he seems to believe that any health exemption in the bill is an all or nothing factor. It makes the bill completely ineffective. That is, it would be impossible to allow a D&X abortion in a case where it is needed to prevent serious disability to the woman without opening the doors to allowing D&X abortions for minor, perhaps trivial, health reasons. Crutcher continued: "But the minute you put... [a health] exception in it, that wipes out the restriction on abortion because the exception includes physical, psychological, familial, the woman's age... Anything relevant to the well-being of the patient is a health exception according to the Supreme Court. Well, that includes everything." 6 |
| Kathleen Gallagher, director of Pro-Life Activities for the New York State Catholic Conference, said: "It's a historic event, because it is the first federal restriction on abortion ever passed by Congress. It really takes the mask off of Roe v. Wade." 7 |
| Reina Schiffrin, president/CEO of Planned Parenthood Hudson Peconic said: "It prevents women, their families and their doctors from making a decision on the best way to protect the lives and the health of women. It is about a procedure that physicians choose to use." |
| Paul deParrie, a pro-life author and anti-abortion activist from Portland, OR, considers the law useless. He wrote an essay "I see dead people." In it, he refers to pro-choice movement as "pro-abort" and abortion providers as "child killers:" |
"It was the fundraisers’ dream - for both sides of the war. The 'pro-life' forces crafted utterly useless laws banning the procedure and pled for money to promote and defend in court these purposeless statutes. 'We can save lives and curb this cruel practice,' they bleated. However, none of the laws would stop a single abortion because there were already several other procedures - some more truly cruel and torturous than D&X - available to be used by the child killers."
"In addition, the shrill shriek of the pro-aborts was heard throughout the land. 'This is just the beginning of losing our abortion rights,' they cried disingenuously while raking in the cash.
"Both sides knew precisely what they were doing. 'Pro-life' leaders knew that the ban wouldn’t stop any abortions. The opposition leaders knew that banning a single procedure would not end 'abortion rights.' The money, though, was good for both."
"Nor were the politicians adverse wallowing the pig sty. Even normally pro-abort office-holders could vote for the ban and gain a few 'pro-life' votes - and possibly campaign support from pragmatic right-to-life organizations. The standard for 'pro-life' organizations giving to candidates was not whether they opposed abortion itself, but whether they would vote for the D&X ban." 8
| Catherine Lederer-Plaskett, leader of the Westchester Coalition for Legal Abortion, said that the bill will give a new urgency to their upcoming "Walk for Choice" event. The bill "is a rallying cry. We've had generations that have grown up with the right to choose, and they have grown complacent. They have sat back passively while these anti-choice zealots have organized....The WCLA has one full mission. It is to get pro-choice candidates elected." 7 |
| An editorial in the Miami Herald stated: "The American College of Obstetrics and Gynecology and other medical groups opposed the bill, and for good reason: It's an inappropriate intervention by legislators into medical decision-making that should be left to women and their families in consultation with doctors. The ban takes away an individual's right to privacy and also a physician's discretion to make decisions in the best interests of a patient. For physicians, the procedure is a medical technique that can save the life or preserve the health of a woman whose pregnancy or other condition such as cancer has put her at serious risk....Opponents of the ban have promised a swift court challenge. Let's hope the courts have a higher regard for women than Congress showed. 9 |
| Senator Rick Santorum (R-PA) said: "This debate was important because it does end a procedure that we believe is outside of Roe v. Wade. And as you know, we have a court that is very hostile to any kind of limitation on what is an absolute right to an abortion in this country. We believed we could pass this because it is outside of an abortion. It's more infanticide as the child is on the way to being delivered." 10 |
| Commentator Jim Rudd believes that pro-life groups have misled their supporters. His essay, subtitled "New law encourages up-to-full term abortions," claims that the new law does not mention the Intact Dilation and Extraction procedure by name. Thus, he concludes, "the D&X procedure is not banned or outlawed by any legal means of this Act." However, the law does define and criminalize all procedures that involve partially delivering a live fetus, killing it, and extracting it. So it would seem to make all D&X and similar procedures illegal, if performed on a live fetus. He continues by noting that the law only prohibits procedures involving a live fetus. He predicts that physicians will simply kill the fetus in the womb, and then apply the D&X procedure. This is easily done by injecting potassium chloride or digoxin into the fetus. Either induces fetal cardiac arrest. He predicts that high intensity focused ultrasonic beams will be used in the future to kill fetuses in the womb. Such devices are currently being developed to pulverize malignant prostate, liver and kidney tumors in adults. They may be reworked to kill fetuses. 11 |
Will the bill survive a constitutional challenge?
Passing the bill is the easy part. The more difficult hurdle is to avoid having the law declared unconstitutional by the U.S. Supreme Court. The Court emphasized the need to for any D&X law to contain a health exclusion clause when it stuck down Nebraska's partial-birth abortion law in the year 2000 Stenberg v. Carhart ruling. Their vote was the usual 5 to 4, reflecting a deeply divided court. The ruling affected more than 30 near-identical laws in other states which also had banned D&X procedures.
The new federal law differs little from the Nebraska law. It is also very broadly written. It has no exclusion clause to handle cases where:
| The fetus is so malformed that it cannot live on its own. |
| The fetus has genetic problems that would only allow it to live for a few minutes or hours after birth |
| The woman's health is at serious risk or permanent disability may happen if the the procedure is not used. |
The opinions of pro-lifers differ greatly on the constitutionality of the Federal bill:
| A note by Jim Rudd on the Covenant News web site said: "G.W. Bush has promised to sign the do nothing bill into law and the abortion people say they will immediately challenge it in court. Congressional staffers on Capitol Hill say that Congress expects the court to overturn the abortion procedure ban so 'it's a safe vote'." 12 |
| Wendy Wright, spokesperson for Concerned Women for America, disagrees. She said "When the House of Representatives wrote this new bill, they took into consideration what the Supreme Court said and they addressed the concerns." 13 |
| Referring to the U.S. Supreme Court ruling, Sam Casey, spokesperson for the Christian Legal Society doubts that the law is constitutional. He said: "It seems to me almost impossible to draft around their [health] concern." 13 |
The Supreme Court is seriously divided between conservative and liberal judges; they often vote as a block. Thus, many recent decisions by the Court have been the result of a split 5 to 4 vote. Wright said "By the time this bill is passed by the Senate and signed into law by President Bush and then works its way up through the court system, it's very likely we'll have one or more new justices on the Supreme Court." 13 This prophecy has not be fulfilled as of 2004-MAR-5. However, there is a possibility that President Bush could nominate as many as four new justices to the court if he is elected to a second term in late 2004. These are likely to be selected, at least in part, because of their philosophical opposition to abortion. Bush has indicated that he would select appointments who were similar to Justices Scalia and Thomas -- the two most conservative justices on the court. With the Republicans in control of both houses of Congress, these nominations are almost certain to be approved, eventually. This greatly increases the likelihood of a federal Partial Birth Abortion Act being declared constitutional. In fact, if President Bush is re-elected, Roe v. Wade, which guaranteed women access to early abortions, may well be overturned by the court in the next few years.
The legal challenges:
Simultaneous trials on the constitutionality of the law started in San Francisco, CA, Omaha, NB, and New York, NY on 2004-MAR-22. One of the questions examined was related to the sensing of pain by a fetus. The law asserts that a partial-birth abortion is a "brutal and inhumane procedure" and that "during the partial-birth abortion procedure, the child will fully experience the pain associated with piercing his or her skull and sucking out his or her brain." U.S. District Judge Richard Casey ruled on 2004-MAR-19 that the testimony of Kanwaljeet S. Anand would would be allowed at the New York City trial. Dr. Anand is a pediatrician who specializes in the care of newborns and children. He has conducted research over the past two decades to study whether a fetus can sense pain. He concludes that a fetus at 20 weeks of gestation may sometimes be able to feel pain. 14
If a D&X procedure is done at a time in gestation when the fetus has attained the ability to feel pain, and if no anesthetic is used, then the fetus would apparently feel something when its skull is pierced. Medical professionals have noted that many male newborns do not react when they are circumcised. So, whether a fetus feels pain when its skull is pierced -- and how intense that pain would be -- is not clear. However, because the brain has no pain sensors, the fetus could not feel its brain being removed. The law's assertion appears to be in error here. That is surprising, because the sponsors and framers of the law would certainly have had access to medical experts when they wrote their bill.
California court grants injunction to prevent the law from being applied:
As just about everyone expected, the United States District Court for Northern California today imposed an injunction on the federal D&X law on 2004-JUN-01 to prevent it from being applied in any of the 900 Planned Parenthood clinics in the U.S. U.S. District Judge Phyllis Hamilton cited three reasons for the injunction:
| The law was unconstitutionally vague. |
| It posed an "undue burden" on a woman's "right" to have an abortion. |
| It lacked an exemption to protect the woman in the event that she would suffer serious medical consequences if she were denied an abortion. 15,16 |
Some Fundamentalist Christian groups were disappointed at the ruling:
| Referring to the court cases which remain to be decided, Carrie Gordon Earll of Focus on the Family said: "We remain cautiously hopeful that at least one of these jurisdictions may yield a different finding. Opponents of this violent and brutal assault on innocent human life have known from the beginning that this would be a long and drawn-out legal battle requiring time, energy and, above all, endurance." |
| Jay Sekulow, Chief Counsel of The American Center for Law and Justice (ACLJ), said: "This is the first stop on a lengthy legal road that ends at the Supreme Court of the United States. We're confident that the national ban on this horrific procedure ultimately will be declared constitutional." |
| Douglas Johnson, Legislative Director of National Right to Life (NRTL) concurred that the U.S. Supreme Court will "ultimately decide whether our elected representatives can ban the practice of mostly delivering a living premature infant and then puncturing her skull." 16 |
| Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission said: "The American people are rightly appalled at the barbarous partial-birth abortion procedure. This decision underscores the fact that there are people in our society who are willing to tolerate or affirm dismembering a partially born baby in pursuit of individual choice. This decision brings disgrace on the federal judiciary and further discredits Planned Parenthood, which is obviously supporting this barbarous procedure of a partial-birth abortion." 20 |
| PPFA President Gloria Feldt, president of Planned Parenthood Federation of America described the ruling as a "landmark victory for medical privacy rights and women’s health....In their zealous pursuit of this dangerous ban and their attempt to seize hundreds of confidential medical records, this administration has squandered vast amounts of U.S. tax dollars to appease anti-choice extremists and fulfill an ideological agenda." 20 |
New York court declares law unconstitutional:
Judge Richard Casey in Manhattan heard closing arguments on 2004-JUN-22.
| Sheila Gowan, a Justice Department lawyer testified in favor of the D&X ban being declared constitutional. She noted that Congress had heard testimony that the procedure is never medically necessary, it poses health risks to the woman, and it inflicts pain on the fetus. |
| Lawyer A. Stephen Hut Jr. argued that the law was unconstitutional because its wording is so vague that it could be interpreted to ban other types of mid-term abortions, perhaps even induced labor. He said that the law interfered with an already "horribly wrenching choice" that should be decided by the woman and her physician. He noted that the procedure carried less risk for the woman that do other types of late-term abortion, and that there was at least enough debate among physicians about D&X procedures that legislators had no right to step in and stop it. |
As expected, Judge Casey ruled that the law is unconstitutional. He struck down the law on 2004-AUG-26 because it did not have a health clause that would permit a D&X abortion if it was absolutely necessary in order to prevent very serious and long-term damage to the woman's health. Cathy Ruse, speaking for the U.S. Conference of Catholic Bishops, said that if a health reason were added to the law, then it would allow an abortion for any reason at all: "...psychological, emotional, familial [health],....the woman's age....financial difficulty." That is, it would be impossible to write an exception clause that would permit D&X abortions in order to prevent catastrophic health problems without allowing a D&X abortion for any reason at all.
Douglas Johnson, speaking for the National Right to Life Committee expects that appeals will be filed in this case, and that it will eventually be decided for the entire country by the U.S. Supreme Court. 17,21
Case in Nebraska also decided:
The Carhart v. Ashcroft trial in Lincoln, NE began in 2004-MAR-29 before U.S. District Judge Richard Kopf. He is the same judge who invalidated Nebraska's partial-birth abortion ban in 1997, a decision which was later confirmed by the U.S. Supreme Court. the case was initiated by the Center for Reproductive Rights on behalf of four doctors who are each licensed to practice in one or more states, including Alabama, Indiana, Iowa, Ohio, Kansas, Maryland, Nebraska, New Jersey, New York, Pennsylvania, South Carolina, Virginia, and Wisconsin. The plaintiffs contend that the federal law is unconstitutional because:
| It would prohibit abortions as early as 12 weeks gestation. |
| It would outlaw a range of safe abortions in the second trimester. |
| It provides no exception in cases where D&X procedure is needed to avoid a serious health complication to the woman. |
| The law is vaguely worded. It does not use medical definitions or describe a single, specific procedure. |
The Center commented: "Dr. Carhart shouldn't have to be back in court, fighting the same fight all over again. Four years ago, the Supreme Court held that 'the findings and evidence support Dr. Carhart.' Nothing has changed since then, except a Congress and President bent on unraveling Roe v. Wade."
Closing arguments were presented on 2004-JUN-02. Judge Kopf issued his ruling
on 2004-SEP-08. He agreed with the courts in New York and California by
declaring the Partial-Birth Abortion Ban Act to be unconstitutional. He
wrote that any law which limits an abortion procedure must include an exception
clause to preserve the woman's health if it is threatened.
18,19,22 Jay Sekulow, spokesperson for the American Center for Law
and Justice, (ACLJ) said: "In the opinion, the court refused to consider
the expert testimony of well-recognized and highly respected medical experts
simply because they had not performed abortions. This conclusion is not only
legally flawed but shows the hostility the court exhibits to medical experts who
have respect for human life."
23
It would seem that the three district judges had no choice but to declare the anti-S&X law unconstitutional. The U.S. Supreme Court overturned a Nebraska state D&X law in the year 2000 because it did not include a health exclusion clause. There does not seem to be any way in which any of the judges could delare the federal law constitutional, because to do so would violate the higher court's decision.
The Family Research Council, a fundamentalist Christian group, commented: "The makeup of the Supreme Court will likely change before it rules on the law - something to keep in mind as the elections draw near. How the Court is composed will be determined by who is President and which Party controls the Senate." 22 If the constitutionality of this law were to be evaluated by the present justices of the U.S. Supreme Court, it is likely that they would reject the legislation by a vote of 5 to 4. The next president will probably nominate at least two new justices during his term of office.
References:
The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.
- Janelle Carter, "GOP Begins Push to Pass Abortion Bill," Excite News, 2003-FEB-13, at: http://apnews.excite.com/
- "Abortion Ban Foes Fight Back," Associated Press, 2003-OCT-31, at: http://www.cbsnews.com/
- "Request for hospital records of some abortions," at: http://www.prochoicetalk.com
- Jennifer Loven, "Bush Signs Partial Birth Abortion Ban," My Way News, 2003-NOV-5, at: http://apnews.myway.com/
- "Gov't Promises to Defend New Abortion Law," The Associated Press, at: http://beliefnet.com/
- Rob Moll, "Will the Partial-birth Abortion Ban Save Lives? Most prolife groups say the ban in itself is not what is important," Christianity Today, Week of 2003-OCT-30. Online at: http://www.christianitytoday.com/
- "Abortion sides brace for fight," The Journal News, Westchester NY area, 2003-OCT-23. Online at: http://www.thejournalnews.com/
- Paul de Parrie, "I see dead people," The Covenant News, 2003-NOV-10, at: http://covenantnews.com/
- "New abortion ban ignores women's health. Our opinion: Congress confuses the issue; courts should clarify," The Miami Herald, Miami, FL, 2003-OCT-24, at: http://www.miami.com/
- "Two huge victories for life," Massachusetts Family Institute MFI E-Alert for 2003-OCT-24.
- Jim Rudd, "Partial-Birth Ban of No Effect," CovenantNews.com, 2003-NOV-26, at: http://covenantnews.com/.
- Jim Rudd, "Partial birth debate: deceptive red herring," Covenant News, at: http://www.covenantnews.com/ This was a temporary posting.
- Bob Kellogg, "Will Abortion Ban Pass Court Muster?," Focus on the Family, 2002-NOV-11, at: http://www.family.org/
- Larry Neumeister, "Judge: MD can testify on fetus pain," Associated Press, 2004-MAR-23, at: http://www.philly.com/
- "PBA Ban Under Judicial Assault," Tony Perkins' Washington Update, Family Research Council, 2004-JUN-1.
- Pete Winn, "Federal Judge Nullifies Partial-Birth Abortion Ban," Citizen Link, Focus on the Family, 2004-JUN-1.
- "Lawyers spar in NYC over federal ban on type of abortion," Associated Press, 2004-JUN-22, at: http://www.chron.com/
- "Federal Abortion Trial to Begin in Nebraska," Center for Reproductive Rights, 2004-MAR-26, at: http://www.crlp.org/
- "Closing Arguments Presented in Nebraska Federal Abortion Ban Trial," Center for Reproductive Rights, 2004-JUN-02, at: http://www.crlp.org/
- Tom Strode, "Judge strikes down partial-birth abortion ban, says law places 'undue burden' on women," Baptist Press, 2004-JUN-1, at: http://www.bpnews.net/
- Keith Peters, "Partial-birth Abortion Ban Blocked," Family News in Focus, 2004-AUG-27, at: http://www.family.org/
- "Activist judges on a roll - third judge rules against PBA ban," Family Research Council, Washington Update, 2004-SEP-08.
- "Third Judge Overturns Partial-birth Abortion Ban," Focus on the Family's Citizen Link daily update, 2004-SEP-09. See http://www.citizenlink.org.
Copyright © 2002 to 2006 by Ontario Consultants on Religious Tolerance
Last updated: 2006-FEB-26
Author: B.A. Robinson
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