From the New York Times:
The decision, by a three-judge panel of the United States Court of Appeals for the Eighth Circuit, in St. Louis, was the first that an appeals court has issued on the ban, which Congress approved in November 2003 with the strong backing of President Bush.
The ruling, written by Judge Kermit Edward Bye and joined by Judges James B. Loken and George G. Fagg, found the law unconstitutional because, while making an exception to the ban to protect the life of a pregnant woman, it made no such exception to preserve her health.
That an appeals court has now ruled on the matter moves the law one step closer to a likely review by the Supreme Court, perhaps in the coming term. In a rare point of agreement between adversaries in the abortion debate, advocates on both sides said the stakes had now been raised even further in Mr. Bush’s selection of a nominee to succeed Justice Sandra Day O’Connor.
The Eighth Circuit’s ruling rests heavily on a decision by the Supreme Court, which, in Stenberg v. Carhart five years ago, struck down such a ban that had been enacted by Nebraska. Before Justice O’Connor announced her retirement last week, the balance on the court in favor of a constitutional right to abortion was 6 to 3. But in Stenberg, the majority was only 5 to 4, with Justice Anthony M. Kennedy voting to sustain the state ban and Justice O’Connor’s vote making the majority.
(Related post from the archives: Judge Richard Kopf’s decision overturning the PBA ban, which the Eighth Circuit has now upheld.)
It’s scary to think that, probably, the Supreme Court will rule that women’s health does not matter.
And it’s impressive how successfully pro-lifers have manipulated this issue. The legal controversy is not, and never has been, whether or not “partial birth” abortion (whatever that means) can be banned. It can be. If the Republicans hadn’t obstructed it, a PBA ban would have become law years ago, and the Courts wouldn’t have objected.
The primary legal controversy about PBA bans is, does protecting women’s health matter? The Supreme Court, in Carhart, said “a State may promote but not endanger a woman’s health when it regulates the methods of abortion” and that “the absence of a health exception will place women at an unnecessary risk of tragic health consequences.” In other words, they ruled that women’s health matters.
Republicans passionately oppose the idea that women’s health matters, and therefore have blocked PBA bans that protected the mother’s health. I find their view barbaric.