Pro-Lifers Lose "Partial-Birth" Abortion Ban Case

A Federal Judge in San Francisco has struck down the “Partial Birth” Abortion Ban, finding that it’s unconstitutional.

This is good news, but it doesn’t end the issue. The case was one of three lawsuits against the PBA ban working their way through the system; it’s also possible that the Supreme Court might decided to consider the ban. Plus, there’s the appeals court, if I understand things correctly.

As I had predicted, the PBA ban was found to be unconstitutional both for vague language and for not having an exception to preserve a woman’s health. In addition, it’s unconstitutional for placing an undue burden on women seeking abortions of nonviable fetuses. From the New York Times:

Judge Hamilton’s ruling turned largely on the testimony of medical experts. She said they had demonstrated that the contested procedure, which she referred to as intact dilation and evacuation, is a variant of and in some ways safer than the most common form of abortion used in the second trimester of pregnancy. The contested procedure is also sometimes called dilation and extraction.

“The term `partial-birth abortion,’ ” Judge Hamilton wrote, “is neither recognized in the medical literature nor used by physicians who routinely perform second-trimester abortions.”

In other forms of abortion, too, Judge Hamilton found, “the fetus may still have a detectable heartbeat or pulsating umbilical cord when uterine evacuation begins” and thus “may be considered a `living fetus.’ ” […]

She also noted that the law does not distinguish between procedures used before fetal viability, when undue burdens are forbidden, and those used after, when the government may regulate or ban abortion except where it is necessary for the preservation of the life or health of the woman.

“Because physicians may face criminal prosecution under the act for violative procedures,” she wrote, “the nature of which they cannot always predict, that act would have a significantly negative impact on their practice and their relationships with their patients, and, in some circumstances, already has.”

Judge Hamilton also ruled that the law was too vague. “It deprives physicians of fair notice and encourages arbitrary enforcement,” she wrote, focusing in particular on the terms “partial-birth abortion” and “overt act.”

The complete decision – which is 117 pages long – can be read here (.pdf file).

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16 Responses to Pro-Lifers Lose "Partial-Birth" Abortion Ban Case

  1. 1
    Rachel Ann says:

    Here’s what confusing me,

    And I don’t know enough about this method to truly understand it.

    But, if the fetus is viable at that point, why not a c-sec if it is a matter of the moms life/health, or inducing birth.

    I know there is something I am missing here…

  2. 2
    Ampersand says:

    First of all, the overwhelming majority of “partial-birth” abortions take place pre-viability, so what you suggest is generally not an issue.

    Second of all, to quote from the judge’s summary of the medical evidence, “a hysterotomy is significantly riskier than a D&E and has serious implications for the woman’s future reproductive health.”

  3. 3
    Rachel Ann says:

    I suppose I could have phrased things better (regarding your first point) and made it an IF statement more clear (That is In those cases where the fetus is viable)

    I did know that c-secs were risky—I studied up on it a bit when I was pregnant with my second and the baby didn’t turn (and c-sec was brought up) There are a whole host of problems, starting with death and going on to paralization, brain damage and up—as most of the problems are due to anethesia, I thought the risks would have been about equal. I take it is is also less risky than inducing labor also? It is more difficult to bear a smaller child as they don’t have the weight to press on the cervix to dialate it…and induced labors often lead to c-secs. But couldn’t one induce and then if the baby isn’t born naturally, move on to a d and e?

    Sorry if these make me sound uneducated…

  4. 4
    Rachel Ann says:

    btw, I’m not advocating against abortion in any partricular form, at least not yet.

    My focus is always on the health of the mother in its many forms. I am probably one of the few Orthodox Jews who would make such a statement, as my fear is that there is a slippery slope, and that slippery slope is to set the mother as nothing more than a vehicle to bear children.

    IMHO abortion needs to be made unnecessary by advancements in science; making it illegal will help no one. Not even the one’s r2lers want to protect.

  5. 5
    Ampersand says:

    Rachel Ann,

    I’m not a doctor, unfortunately (well, unfortunately from the point of view of answering your questions, fortunately when you consider that I probably wouldn’t enjoy being a doctor). So I’m not super-confident about my answers to your questions.

    However, from all the studies I’ve heard of, it’s clear that c-sec is much more dangerious than a D&E or D&X abortion. (Abortion is also safer than childbirth, according to most studies).

    The best way to keep a woman safe during any such procedure is to do the procedure as quickly as possible with as little interference with her body as possible. A C-Section takes much longer to accomplish (meaning she has to be under the anethesia longer, increasing that risk) and involves cutting her open; it’s therefore much more problematic for the woman’s health than an abortion. A C-Section also typically will involve greater blood loss.

    As for induction, so much depends upon the individual woman. If she has uterine scarring from a previous c-section or other complication, then the drugs given to her to cause contractions could cause her uterus to rupture along the scar. If she has any blood clotting difficulty, then the two-day induction procedure could cause dangerious bleeding (D&Es cause bleeding too, but if they’re properly performed it lasts much less long). “Women with cardiac or pulmonary disease, including asthma, also cannot tolerate excessive blood loss, because it causes excessive strain on their systems.”

    There are also some conditions that make induction impossible, such as placenta previa.

    Finally, as I understand it (and, again, I am not a doctor), a D&E is much less safe if it’s performed once labor has begun. Certainly, it seems self-evident that contractions and labor would make performing a D&E much more difficult.

    The bottom line, for me, is that there are too many variables to make a single rule for all women. Maybe for some women, induction makes more sense. But I think the safest thing for women is for that decision to be hers (and her doctors), rather than it being made by Congress. (And I’m glad you agree).

  6. 6
    dana says:

    the mere fact of putting a woman into labor is going to be more dangerous than just using anaesthesia and performing a procedure upon her that doesn’t require her body to do any work, assuming she doesn’t have a bad reaction to anaesthesia (and the overwhelming majority of patients don’t). i’m not a doctor, but labor is very hard on a woman’s body even when she’s healthy, and it’s a lot to ask of a woman to go into labor for something that’s not going to be living after it’s born in the first place. if it’s a baby she wanted and she doesn’t know it’s going to die, or already knew it had problems and asked to continue the pregnancy anyway, that’s one thing. using labor as an abortion procedure is quite another.

  7. 7
    angstela says:

    There are a few things here.

    For one, general anethesia is optional during an abortion (and definitely not during a c-section). A local that numbs the cervix is all that’s actually necessary.

    In all the studies I’ve seen, an abortion is easier on the body and safer for a woman’s health than is labor/delivery, no matter the size of the fetus, and it’s definitely easier than invasive surgery that cuts through a woman’s abdominal muscles and uterus.

    The other thing is that the vast majority of D&E abortions are not performed as a “birth control” issue (that is, women who simply do not wish to have a child, for whatever reason, tend to have an abortion much earlier and do not require a D&E). D&E is generally used for horribly malformed fetuses (that is, they have no brain beyond a brainstem, or other such complications) whose problems have not been detected until the second trimester. Usually they will not live to term, and some women choose to have an abortion rather than wait for the fetus to die inside them and having a stillbirth.

    Asking a woman to go into induced labor and give birth for that would be (imo) cruel (not saying Rachel Ann is being cruel, but I felt this law was cruel). PC or not to say, it’s “easier” on these women to have a more clinical procedure since by losing a child they wanted they’ve already suffered enough.

  8. 8
    Rachel Ann says:

    Okay, I can see that. I wrote more about my feelings on my own blog, but to summarize here what i said there, I would just like to see a day when abortions are never necessary, that we work out a way so the mother never feels that is the only way. I should have emphasized that there, I emphasize it here, because too often people say “not necessary” they mean “not necessary for them”.

  9. 9
    Rachel Ann says:

    Next time I’m previewing before I post! I mean referred to everyone’s medical explanations for preferring a D & E to other alternatives.

  10. 10
    Andrew says:

    This isn’t quite on topic, but I read a very moving article on elective ceasareans in The Guardian. It seems that in some (many?) cases, even if childbirth would be dangerous for both mother and baby, c-sections are put off until they’re the only remaining solution

    “Maggie O’Farrell suffered three days of agonising labour before her consultant agreed to operate. Why, she asks, is the medical establishment so fixated on natural births?”,3604,1221437,00.html

    I would make the URL clickable if I knew how.

  11. 11
    angstela says:

    You’re right about the necessary bit, Rachel. I speak only from my own experience here. I was offered the choice in it, and chose local over general; I think some of the choice for general anesthesia is more an emotional necessity than a physical one, but I completely understand it, too.

    I also agree with you that the ideal situation would be one in which things never got to the point that an abortion was necessary. In my own case, I’ve known from a very young age that I did not want children, and I’ve always wanted to be sterilized, but most physicians will not sterilize a young, unmarried woman who has never had children because, they say, someday she might want kids and then what? And, unfortunately, sometimes birth control fails.

    So, it’d be really very nice if it were possible to provide that women who do not wish to become pregnant, don’t.

    I don’t think, though, that it will ever be possible to fully eliminate the need for abortion, unless we can somehow completely rule out severe birth defects and the like as well, or cases where women’s lives are severely endangered by their pregnancies.

    Finally, one last personal story. My aunt was seven months pregnant just two years before Roe vs. Wade, and was in a automobile accident. The accident killed her unborn child, but because of the anti-abortion regulations in our state, she could not have it removed, and instead had to endure two weeks of knowing her baby was dead, inside her, until her body finally went into labor on its own (I really don’t know why labor wasn’t induced, though I thought she had once said it had something to do with the same anti-abortion laws, about not inducing a less-than-full-term birth).

  12. 12
    Rachel Ann says:


    That is horrible about your Aunt! abosoloutely horrible! What a cruel, vicious thing to do to someone.

    You may be right, and it may be impossible to always eliminate abortion, but I do hope we can move a little closer to the goal. I guess I’m sort of an idealist.

  13. 13
    Ampersand says:

    Rachel Ann, I certainly agree with that. If you haven’t already, read this post of mine (or just skip down to the big quoted block), which suggests in general terms how we might approach reducing abortion.

  14. 14
    Echidne says:

    I’m wondering if this decision will lead to a challenge in the Supreme Court against Roe vs. Wade?

  15. 15
    halle says:


    This law was enacted with the goal of having it go to the Supreme Court. Everyone involved with it knew it would be found unconstitutional under existing law and precedent. This isn’t a hard case. The Supremes have already ruled on state-passed so-called PBA laws, and this one was no different. This was passed as a sop to religious conservatives, knowing it wouldn’t be enforced, and with the hope that it would rally the religious right at the voting booth.

  16. 16
    Barbara says:

    Probably too late, but I have personal knowledge of second trimester abortions. You don’t do a c-sec because you really can damage the uterus with scar tissue and infection, and most women want to preserve their fertility. Indeed, for most women, a second trimester termination is a personal tragedy.

    As to Rachel wishing abortions could never be necessary — in the case of second trimester abortions it’s almost always because of an identified problem with mother or baby. In my very humble opinion, these are often morally the least objectionable abortions performed, as the life or health of either the mother or the fetus or both is often at stake.

    The labor that is induced in a second trimester termination is harder because you have to use really high doses of drugs. Nonetheless, in most places, this is the favored practice. It expels an intact fetus and this is preferred. But for some women, it would be too hard, the drugs would be too much, or it’s just emotionally or physically unacceptable to go through a protracted labor and possible complications (like rupture). Hence, doctors feel the need for alternative procedures.