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.
Quotation:
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Pete Winn, associate editor of Focus on the Family: "A 'watershed moment in the culture wars' may be in
the offing." 1 |
Timeline of the court activity:
Important developments concerning anti-D&X legislation
occurred:
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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. |
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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. |
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2003-OCT-21: The Senate approved the bill 63 to 34. |
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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. |
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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. |
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2005-JUL-08: The 8th Circuit Court of Appeal declares the law to be
unconstitutional. |
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2005-SEP-26: The federal Department of Justice asked the U.S.
Supreme Court to review the Nebraska case. |
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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 |
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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 |
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2007-APR-18: The Supreme Court ruled in
a 5:4 decision that the federal law is constitutional. |
Background of the federal bill:
The bill was hotly debated in Congress in 2003. There was a near consensus among Democrats and Republicans that:
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A D&X procedure should be legal if it is necessary to save the life
of the woman. |
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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.
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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. |
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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.
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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. |
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One liberal commentator referred to the law as
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"...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
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:
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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:
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It is so generally worded that it creates a risk of criminal
liability for physicians "...during virtually all abortions
performed after the first trimester." |
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The "omission of a health exception renders the Act
unconstitutional." |
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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:
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The absence of a health exemption. |
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The possibility that the law could be applied to criminalize
abortions as early as 12 weeks, |
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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:
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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 |
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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. |
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2006-JAN-31: National Abortion Federation v. Gonzales: The 2nd
U.S. Circuit Court of Appeals upheld the New York case. 7 |
Supreme Court activity is covered in a
separate essay
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
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Pete Winn, "Supreme Court Takes Partial-Birth Abortion Ban Case", Focus on the Family, 2006-FEB-21, at:
http://www.family.org/
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Jerry Goldman et al., "Stenberg v. Carhart. 530 U.S. 914 (2000) ." Text, abstract, etc. are online at:
http://www.oyez.org/
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The text of the "Partial-Birth Abortion Ban Act of 2003" is online at:
http://www.nrlc.org/
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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/
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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/
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"The Federal Abortion Ban in the Courts," ACLU, 2006-JAN, at: http://www.aclu.org/
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"Court Rules Partial-Brith [sic] Abortion Ban Unconstitutional," North
Carolina Family Policy Council," 20050JUL-11, at:
http://www.ncfamily.org/
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Joshua Holland, "The Conservative Circuit-Court Conspiracy," AlterNet, 2005-JUN-08, at:
http://www.alternet.org/
Copyright 2006 & 2007 by Ontario Consultants on Religious Tolerance.
First posted: 2006-FEB-21
Last updated: 2007-APR-18
Author: B.A. Robinson
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