Appeals Court Finds "Partial Birth" Abortion Ban Unconstitutional

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.

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7 Responses to Appeals Court Finds "Partial Birth" Abortion Ban Unconstitutional

  1. 1
    Morgaine Swann says:

    It’s more than barbaric – it’s hateful and oppressive. They want to control every aspect of women’s lives and sexuality, but I hope we’re smart enough not to let it continue.

  2. 2
    Kyra says:

    If this ruling gets overturned, I think that if I ever become pregnant I’ll spend my entire pregnancy in more enlightened countries. Somebody who thinks my health matters can get the economic benefits of my work and consumer spending.

    Somebody else mentioned that the biggest problem with this particular case was not the lack of a health exception but language so vague it could be interpreted to mean all abortions. Anyone got better than hearsay on this?

    Saying Republicans are barbarians is an insult to most barbarians, by the way. Although some of Bush’s speeches sound eerily reminiscent of “I am the flail of God.”

  3. 3
    Ampersand says:

    Somebody else mentioned that the biggest problem with this particular case was not the lack of a health exception but language so vague it could be interpreted to mean all abortions. Anyone got better than hearsay on this?

    That was a big part of the San Francisco Court’s reasoning when they overturned the PBA ban. However, two of the four Courts that have overturned this ban so far haven’t mentioned the vagueness issue at all, whereas all four have mentioned the lack of the health exception.

    Before O’Connor announced her retirement, I’d say that both issues were equally important. Now that she won’t be on the Court, who knows?

  4. 4
    dK says:

    Wisconsin is moving to ban the “morning-after” pill at each of it’s 26 state universities. Likewise, counselors will not be able to mention its availablility. It’s sad to watch this once progressive state lurch toward the right:

  5. 5
    Tom T. says:

    What does a health exception mean in practice? Is a doctor’s opinion required, or can that decision be made at a clinic?

  6. 6
    JoKeR says:

    This is really a response to the post you referenced about the Republicans opposing the passage of a legal ban on “partial birth” abortions. Sorry to respond to that here, but the comment thread there is so old I doubt this would be noticed (and why else would I spend the time doing this?).

    I just wanted to point out that Sebastian’s argument about health exemptions being abused is specious. He basically argues that out of 6000 3rd trimester abortions performed each year, all of them had been approved. None were denied! Of course, any requested 3rd trimester abortions which were denied would never have been performed and thus would never be included in the 0.4% of all abortions which were done in the 3rd trimester on which he bases his argument. Your remarks about other logical fallicies in his arguments are also worthwhile, but his argument is bogus in more than just the ways you mentioned.


  7. 7
    Ampersand says:

    JoKeR – Good point. I can’t believe I missed that. (And new comments on old posts are always noticed, at least by me – plus, they show up on the “recently commented” list, no matter how old the post is.)

    Tom T., I believe that would depend on how the law in question is written. One of the Democratic suggestions, which the Republicans rejected, would have made late-term abortions dependent on the agreement of two doctors that serious, physical health issues were involved. Other proposals are less stringent.