"Partial-Birth" ban loses third court case in a row

From CNN.com:

LINCOLN, Nebraska (AP) — A third federal judge ruled Wednesday that the Partial-Birth Abortion Ban Act is unconstitutional, saying it fails to include an exception when a woman’s health is in danger.

U.S. District Judge Richard Kopf of Lincoln said that Congress ignored the most experienced doctors in determining that the banned procedure would never be necessary — a finding he found “unreasonable.”

“According to responsible medical opinion, there are times when the banned procedure is medically necessary to preserve the health of a woman and a respectful reading of the congressional record proves that point,” Kopf wrote. “No reasonable and unbiased person could come to a different conclusion.”

In the end, it’s up to the Supreme Court. With the current Court line-up, there’s almost no question that the PBA ban is unconstitutional. The danger is, if Bush wins re-election, he might get a chance to replace one of the five justices who previously (in the Stenberg case) ruled that a previous version of the PBA ban was unconstitutional.

In the meantime, however, this is good news.

Judge Kopf’s opinion (.pdf file) is an amazing 474 pages long; I hope you’ll understand that I haven’t read the whole thing yet. I do like Judge Kopf’s apology, from his introduction:

I pity the poor appellate judge who has to slog through this
thing. I am truly sorry.

Judge Kopf provides an outstandingly comprehensive summary of the medical evidence. In the end, it comes down to this:

Congress, and Mr. Ashcroft, argue that there are other physicians who come to a different conclusion. Setting to one side the fact that those physicians are inexperienced with abortion, the fact that other doctors may disagree is not important. Legally, an abortion procedure is “safe,” “safer,” and “necessary” when a significant body of medical opinion believes it to be so. Congress and Mr. Ashcroft bore the burden of persuasion to establish that there is no significant body of medical opinion supporting the safety and necessity of the banned procedure. They failed in their effort.

In summary, examined from the perspective of the trial record, substantial evidence is lacking to support Congress’ Findings that there is “no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures,” and that the banned procedure is “never necessary to preserve the health of a woman.” On the contrary, the trial record establishes that there is a significant body of medical opinion that contradicts Congress. No reasonable person could come to a contrary decision.

Therefore, I declare the “Partial-Birth Abortion Ban Act of 2003″ unconstitutional because it does not allow, and instead prohibits, the use of the procedure when necessary to preserve the health of a woman.

The ruling was not a total win for pro-choicers; pro-lifers should take some comfort in particular from Judge Kopf’s statement that his “decision does not invalidate the ban where the fetus is indisputably viable.”

Most importantly, none of the cases that I have examined or that the parties have brought to my attention deal with the most critical question in this area. Regarding the
“facial” and “applied” dichotomy, how does a trial court properly apply the substantive law of abortion regulation, depending, as that law does, upon whether the fetus is viable, when the evidence presented to the trial court concentrates almost exclusively upon situations where the fetus is not viable?[...]

Therefore, I will declare the law unconstitutional in all of its applications when the fetus is not viable or when there is a doubt about the viability of the fetus in appropriate medical judgment of the doctor performing the abortion. To be precise, unless the fetus is indisputably viable, my decision protects the physician when he or she performs a partial-birth abortion in the exercise of appropriate medical judgment.

[Judge Kopf's footnote: The time when "viability" is generally thought to occur has decreased as medicine has developed new and better ways of treating premature infants. Even so, the definition of when "viability" is generally thought to occur changes from institution to institution, fetus to fetus, and physician to physician. In addition to the evolving standard of when viability generally occurs, viability in a given instance turns on a wide range of factors. Thus, in the inevitable cases where there is uncertainty about viability, the abortionist's appropriate medical judgment must prevail. Using this standard, physicians will not fear using the banned procedure in situations where viability is questionable. Even if they are wrong about viability, the government is prohibited from enforcing this law against those doctors unless the fetus was indisputably viable.]

I do not determine whether or not the law is constitutional when the fetus is indisputably viable. In this court, that legal issue remains an open question. However, the government would be well-advised to seek an answer to that question before it commences a criminal prosecution. Only an over-zealous prosecutor would seek an indictment against a physician who performed a partial-birth abortion on a viable fetus without first seeking some type of judicial declaration that the statute is enforceable in that circumstance.

Furthermore, Kopf ruled that – if the government’s “specific intent” interpretation of the PBA ban (which says that doctors can only be prosecuted if they specifically intend to perform a “partial birth” abortion before they began, but that the “partial birth” procedure is still legal if it wasn’t the “original intent” but becomes medically necessary partway through the procedure) holds water – then the PBA isn’t unconstitutionally vague.

In other words, contrary to what pro-choicers have argued, Judge Kipf ruled that there is a way to interpret the PBA ban that is not so vague as to be unconstitutional.

However, the interpretation that protects the PBA ban from the “unconstitutionally vague” problem, has the side effect of making the ban very hard to enforce. As Judge Kopf pointed out in a footnote, “Mr. Ashcroft’s [interpretation] makes proof that the Act has been violated extremely difficult.” So if the PBA ban isn’t unconstitutionally vague, then it’s almost unenforceable.

According to this decision, anyway. But in the end, it comes down to what the Supreme Court thinks. Which means, unfortunately, that it probably comes down to who wins the 2004 presidential election.

Other “Alas” posts on the “partial-birth” abortion ban can be read here.

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3 Responses to "Partial-Birth" ban loses third court case in a row

  1. 1
    Kate says:

    Whether or not Partial-Birth abortions (the horrible thing that it is… have you ever heard one of those babies [or should I refer to it as a fetus] scream while being aborted?) is not the entire issue here. The main issue is abortion and women’s right. I don’t think a mother has the right to an abortion, period. It’s taking the life of her child. That’s right: a child, not just a fetus. To be a mother, you must have a child growing within you. It may not be entirely the woman’s fault that she is pregnant (statisitics show that is not the majority) but that child should have the right to live and find out if it wants to stay in this world or not. It’s not the mother’s right; it’s not her life.

  2. 2
    Ampersand says:

    Remember when pro-lifers claimed that it was a silent scream?

    In a late-term D&X abortion – which is the procedure partial-birth ban advocates usually claim the term “partial birth” refers to – the preborn’s head is compressed and the contents removed before the head is removed from the mother’s body. Since the preborn is not breathing on its own (let alone screaming) before its head emerges, and is no longer alive when its head is drawn out of the body, it is totally, entirely, physically impossible that a preborn baby would “scream” during the D&X abortion procedure.

    The only way a baby could scream while being aborted is if it were a late-term abortion (less mature babies can’t breath without assistance, and hence wouldn’t scream) with a head-first presentation in which the doctor didn’t compress the skull before drawing the head out of the mother’s body. However, no doctor would do it that way, since an uncompressed late-term head would be certain to hurt the mother on the way out.

    So no, I’ve never heard a baby scream while going through a partial-birth abortion. And although I suspect you’ll claim otherwise, I sincerely doubt you’ve ever heard such a thing, either.

  3. 3
    Jake Squid says:

    Wasn’t it Arkady in the Pulp series who was part of the movement for fetus rights? You know, the mother is secondary to the interests of the unborn in all cases. Did Arkady come off the pages and appear as Kate? Cool. And let’s carry Arkady/Kate’s belief to their logical conclusion. Should the child ever need an organ (be it kidney, liver, lungs, heart….) the mother must provide the needed organ at any time during the child’s life that it should be required. Even if it means her death. What a wonderful world it could be.