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D&X / PBA procedures

Injunctions applied against the 2003 federal
Is the 2003 law a positive development?

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Three lawsuits launched to prevent D&X law from being applied:

In an unusual coordinated move, a coalition of three pro-choice groups -- the Center For Reproductive Rights, the American Civil Liberties Union, and Planned Parenthood -- filed three lawsuits on 2003-OCT-31, before the bill was signed into law.

bullet 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

bullet Dian Harrison of Planned Parenthood said: "President Bush intends to put the health and welfare of women in jeopardy."

bullet 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."

bullet 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...

    • First, despite the Supreme Court's clear mandate...the Act fails to include any exception to the prohibition on abortion procedures 'where it is necessary, in appropriate medical judgment for the preservation of of the mother.'...Thus, the Act prohibits physicians from exercising their professional medical discretion to determine the most appropriate procedure for their patients, and bars physicians from providing, and their patients from obtaining, the safest abortion possible.

    • Second, the Act defines the term 'partial-birth abortion' so broadly as to ban the safest and most common methods of abortion starting at least at the beginning of the second-trimester of pregnancy, including the Dilation and Evacuation ('D&E') method of abortion...

  • 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

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Is the law is a positive development? A debate:

There are conflicting comments:

bullet 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

bullet 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

bullet 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

bullet 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."

bullet 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

deParrie is correct. Where a late-term pregnancy goes terribly bad or a childbirth turns potentially fatal, physicians will no longer be able to perform a D&X procedure to save the life of the woman or to preserve her from devestating medical consequences. They will instead perform a hysterotomy which is a far more invasive procedure. It is major surgery and is much more likely to produce serious infection. The end result will be the same as far as the fetus is concerned; however the woman will often be harmed by the process.

bullet 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

bullet 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

bullet 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

bullet 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

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The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Janelle Carter, "GOP Begins Push to Pass Abortion Bill," Excite News, 2003-FEB-13, at:
  2. "Abortion Ban Foes Fight Back," Associated Press, 2003-OCT-31, at:
  3. "Request for hospital records of some abortions," at:
  4. Jennifer Loven, "Bush Signs Partial Birth Abortion Ban," My Way News, 2003-NOV-5, at:
  5. "Gov't Promises to Defend New Abortion Law," The Associated Press, at:
  6. 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:
  7. "Abortion sides brace for fight," The Journal News, Westchester NY area, 2003-OCT-23. Online at:
  8. Paul de Parrie, "I see dead people," The Covenant News, 2003-NOV-10, at:
  9. "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:
  10. "Two huge victories for life," Massachusetts Family Institute MFI E-Alert for 2003-OCT-24.
  11. Jim Rudd, "Partial-Birth Ban of No Effect,", 2003-NOV-26, at:

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Copyright © 2002 to 2010 by Ontario Consultants on Religious Tolerance
Last updated: 2010-JUN-27
Author: B.A. Robinson
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