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D&X / PBA procedures

California, New York and Nebraska
courts declare law unconstitutional

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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:

bullet The fetus is so malformed that it cannot live on its own.
bullet The fetus has genetic problems that would only allow it to live for a few minutes or hours after birth
bullet 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:

bullet 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'." 1
bullet 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." 2
bullet 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." 3

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." 2 During his second term (2004-2008) he did nominate two strict constructioist justices to the U.S. Supreme Court. These were selected, at least in part, because of their philosophical opposition to abortion. Bush had indicated that he would select appointments who were similar to Justices Scalia and Thomas -- the two most conservative justices on the court. This greatly increases the likelihood of a federal  Partial Birth Abortion Act being declared constitutional.

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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. 3

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.

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California court grants injunction to prevent the law from being applied:

As just about everyone expected, the United States District Court for Northern California 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. 4,5

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." 5
  • 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." 6

As expected, pro-choice leaders had an opposing view:

  • 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." 6

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New York court declares law unconstitutional:

Judge Richard Casey in Manhattan heard closing arguments on 2004-JUN-22.

bullet 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.

bullet 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, she feels that 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. 7,8

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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:

bullet It would prohibit abortions as early as 12 weeks gestation.
bullet It would outlaw a range of safe abortions in the second trimester.
bullet It provides no exception in cases where D&X procedure is needed to avoid a serious health complication to the woman.
bullet 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. 9,10,11

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." 12

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." 11If 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.

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References:

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

  1. Jim Rudd, "Partial birth debate: deceptive red herring," Covenant News, at: http://www.covenantnews.com/  This was a temporary posting.
  2. Bob Kellogg, "Will Abortion Ban Pass Court Muster?," Focus on the Family, 2002-NOV-11, at: http://www.family.org/
  3. Larry Neumeister, "Judge: MD can testify on fetus pain," Associated Press, 2004-MAR-23, at: http://www.philly.com/
  4. "PBA Ban Under Judicial Assault," Tony Perkins' Washington Update, Family Research Council, 2004-JUN-1.
  5. Pete Winn, "Federal Judge Nullifies Partial-Birth Abortion Ban," Citizen Link, Focus on the Family, 2004-JUN-1.
  6. 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/
  7. "Lawyers spar in NYC over federal ban on type of abortion," Associated Press, 2004-JUN-22, at: http://www.chron.com/
  8. Keith Peters, "Partial-birth Abortion Ban Blocked," Family News in Focus, 2004-AUG-27, at: http://www.family.org/
  9. "Federal Abortion Trial to Begin in Nebraska," Center for Reproductive Rights, 2004-MAR-26, at: http://www.crlp.org/
  10. "Closing Arguments Presented in Nebraska Federal Abortion Ban Trial," Center for Reproductive Rights, 2004-JUN-02, at: http://www.crlp.org/
  11. "Activist judges on a roll - third judge rules against PBA ban," Family Research Council, Washington Update, 2004-SEP-08.
  12. "Third Judge Overturns Partial-birth Abortion Ban," Focus on the Family's Citizen Link daily update, 2004-SEP-09. See http://www.citizenlink.org.

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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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