D & X / PBA procedures

Federal law: lower court activity

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Notation:

We use the medical term "D&X" procedure to cover what is commonly referred to as Partial Birth Abortions.

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Quotation:

Pete Winn, associate editor of Focus on the Family: "A 'watershed moment in the culture wars' may be in the offing." ₁

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Timeline of the court activity:

Important developments concerning anti-D&X legislation occurred:

	2000-JUN-28: The U.S. Supreme Court ruled in Stenberg v. Carhart, that a state anti-D&X law signed into law by the governor of Nebraska was unconstitutional because it did not provide an exception to preserve the health of the woman. ₂ The vote was close: 5 to 4. About 30 similarly worded laws in other states were nullified by this decision.
	2003-OCT-02: The Federal House passed an anti-D&X bill by a vote of 281 to 142. It did not include a health exemption, is vaguely worded, and contains assertions that appear to be without foundation.
	2003-OCT-21: The Senate approved the bill 63 to 34.
	2003-OCT-31: A coalition of three pro-choice groups -- the Center For Reproductive Rights, the American Civil Liberties Union, and Planned Parenthood -- filed separate lawsuits seeking to have the law declared unconstitutional. Temporary injunctions were issued by all three courts preventing the law from being applied.
	2003-NOV-05: President George W. Bush signed the federal bill into law. ₃ The three courts involved in the lawsuits issue temporary injunctions preventing the law from coming into effect.
	2005-JUL-08: The 8th Circuit Court of Appeal declares the law to be unconstitutional.
	2005-SEP-26: The federal Department of Justice asked the U.S. Supreme Court to review the Nebraska case.
	2006-JAN-31: On the same day, the 9th U.S. Circuit Court of Appeals and the 2nd U.S. Circuit Court of Appeals declare the law to be unconstitutional. _4,5
	2006-FEB-21: U.S. Supreme Court accepted the lawsuit initiated in Nebraska for review. The Supreme Court later combined two of the three cases and consider them together. ₁
	2007-APR-18: The Supreme Court ruled in a 5:4 decision that the federal law is constitutional.

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Background of the federal bill:

The bill was hotly debated in Congress in 2003. There was a near consensus among Democrats and Republicans that:

	A D&X procedure should be legal if it is necessary to save the life of the woman.
	A D&X procedure should not be allowed if the woman merely elected to terminate the pregnancy for personal reasons.

However, legislators could not agree on those cases where a D&X procedure is needed to prevent the woman from suffering extremely heavy adverse health consequences, such as permanent disability. Many Democrats generally felt that she should be allowed to end the pregnancy; many Republicans felt that she should accept what might be permanent disability.

Senator Richard Durbin (D) introduced an amendment which would have allowed a D&X abortion to be performed under these circumstances. Mike Schwartz, of the conservative agency Concerned Women for America said: "A vote for the Durbin amendment is a vote to kill the partial-birth abortion ban ... and that means that means we'd be finished with this until the next Congress." Senator Rick Santorum (R) said: "It really is a phony amendment that wipes the whole ban out, and we hope that it will be defeated." This appears to be an admission that D&X procedures that the bill would prohibit are mainly performed to prevent very serious, disabling health problems. The amendment was defeated.

The bill contradicted medical concerns over maternal health by stating that: "partial-birth abortion is never medically indicated to preserve the health of the mother, [but instead]...poses additional health risks to the mother." The U.S. District Court for the Southern District of New York later ruled that several factual findings in the law are unsupported by actual data. ₆

The bill passed both the House and Senate without Durbin's amendment and was signed into law by President Bush on 2003-NOV-05.

Reaction to the law was mixed.

	Some commentators felt that it was a major advance. Is is the first federal law ever that restricts the practice of abortion. They predicted that the law would save the lives of many fetuses by preventing the vast majority of D&X procedures.
	Others expressed concern that some doctors would fear prosecution and might deny a D&X procedure even if the woman's life was in some danger. This could result in the deaths of many women.
	Still others suggested that the law would not save the life of a single fetus because physicians would simply resort to performing hysterotomies -- a procedure similar to a Caesarian section. The fetus would still die, but some women's health would be placed at greater risk.
	One liberal commentator referred to the law as

"...legislative activism -- crafting laws that directly challenge legal precedent and, in so doing, create win-win scenarios for the right: in the unlikely event the bans are upheld, they would severely erode a woman's right to choose her own reproductive healthcare. If they're overturned, it would fire up the Republicans' socially-conservative base and support the view that 'secularists' -- in the words of David Limbaugh, author and legal scholar... 'are waging a war against Christianity and the freedom of Christians to be involved in public life'." ₇

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Injunctions obtained:

Three pro-choice groups -- the Center For Reproductive Rights, the American Civil Liberties Union, and Planned Parenthood -- filed separate lawsuits seeking to have the law declared unconstitutional. Judges in New York City, NY, San Francisco, CA, and Lincoln, NB all issued temporary injunctions preventing the law from being applied.

Subsequently:

2004-JUN-01: Planned Parenthood Federation of America v. Gonzales: The U.S. District Court for the Northern District of California declared the law unconstitutional for two reasons:

	It is so generally worded that it creates a risk of criminal liability for physicians "...during virtually all abortions performed after the first trimester."
	The "omission of a health exception renders the Act unconstitutional."

2004-AUG-26: National Abortion Federation v. Gonzales: The U.S. District Court for the Southern District of New York declared that the law is unconstitutional "...because it does not provide for an exception to protect the health of the mother." They also commented that several of Congress�s factual findings which were incorporated into the law are unsupported.

2004-SEP-08: Gonzales v. Carhart: The U.S. District Court for the District of Nebraska also struck down the law. They cited three concerns:

	The absence of a health exemption.
	The possibility that the law could be applied to criminalize abortions as early as 12 weeks,
	The law did not limit is applicability to D&X procedures and may be interpreted as criminalizing other abortion procedures. ₆

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Decisions by Circuit Courts of Appeals:

	2005-JUL-08: Gonzales v. Carhart: A three judge panel of the 8th U.S. Circuit Court of Appeals upheld a lower court ruling that the federal anti-D&X law is unconstitutional. They confined their objection to the absence of a health exclusion. Referring to the U.S. Supreme Court's ruling in Stenberg v. Carhart (2000), Judge Kermit Bye wrote: "...we are bound by the Supreme Court's conclusion that 'substantial medical authority' supports the medical necessity of a health exception....Because the Act does not contain a health exception, it is unconstitutional." ₈
	2006-JAN-31: Planned Parenthood Federation of America v. Gonzales: The 9th U.S. Circuit Court of Appeals upheld the lower court decision in the California case.
	2006-JAN-31: National Abortion Federation v. Gonzales: The 2nd U.S. Circuit Court of Appeals upheld the New York case. ₇

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Supreme Court activity is covered in a separate essay

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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.

Pete Winn, "Supreme Court Takes Partial-Birth Abortion Ban Case", Focus on the Family, 2006-FEB-21, at: http://www.family.org/
Jerry Goldman et al., "Stenberg v. Carhart. 530 U.S. 914 (2000) ." Text, abstract, etc. are online at: http://www.oyez.org/
The text of the "Partial-Birth Abortion Ban Act of 2003" is online at: http://www.nrlc.org/
The text of the ruling by the 9th Circuit Court of Appeals in the San Francisco lawsuit is online at: http://www.ca9.uscourts.gov/
The text of the ruling by the 2nd Circuit Court of Appeals in the New York lawsuit is online at: http://www.ca2.uscourts.gov:81/
"The Federal Abortion Ban in the Courts," ACLU, 2006-JAN, at: http://www.aclu.org/
"Court Rules Partial-Brith [sic] Abortion Ban Unconstitutional," North Carolina Family Policy Council," 20050JUL-11, at: http://www.ncfamily.org/
Joshua Holland, "The Conservative Circuit-Court Conspiracy," AlterNet, 2005-JUN-08, at: http://www.alternet.org/