Roe v. Wade+ 31: Partial-Birth Ban Heads for Court

WASHINGTON — When pro-life advocates gather for the annual March for Life in Washington, D.C., this week, they will still be cheering the partial-birth abortion ban victory of last fall when President Bush signed a bill that took Congress more than eight years to pass.

But the ultimate fate of that law — the first federal rollback of the Roe v. Wade decision that is marked by the annual march — is still in question. Legal scholars say legal challenges will likely take it all the way to the U.S. Supreme Court.

Within hours of Bush's signing the bill Nov. 5, federal judges in New York, Nebraska and California issued temporary restraining orders blocking the law from taking effect. The three separate legal challenges, all brought by abortion groups and individual abortionists, will be heard March 29.

The hearings will address the injunctions as well as the merits of the Partial-Birth Abortion Ban Act of 2003 itself. The U.S. Senate passed the bill Oct. 21 by a vote of 64-34 three weeks after the House passed its own version on a 281-142 vote.

The first legal ruling against the new law came less than an hour after Bush signed the legislation when a federal judge in Nebraska issued an order that applies only to four abortionists licensed in 13 states.

Then Planned Parenthood Federation of America, its San Francisco affiliate and the City of San Francisco challenged the new legislation in federal court. A Jan. 8 ruling by U.S. District Judge Phyllis Hamilton makes San Francisco the first local government in the nation to enter the court battle over the constitutionality of the Partial-Birth Abortion Ban Act of 2003.

Planned Parenthood's attorneys did not return calls to the Register for comment.

And the National Abortion Federation, represented by the American Civil Liberties Union, challenged the law in a New York federal court. The federation said in a statement that the injunction blocking the new law “confirms that it was reprehensible for lawmakers to push through a ban that will harm women in need of critical medial care. By refusing to include a health exception, lawmakers demonstrated that they are willing to trade women's health and to flout the Constitution for political gain.”

In 2000, the U.S. Supreme Court overturned a Nebraska ban on the procedure in Stenberg v. Carhart, saying it was unconstitutional because it did not have an exception for the health of the mother and it could be construed as banning other abortion methods.

Ohio Upheld

But the Partial-Birth Abortion Ban Act contains a lengthy medical-findings section declaring that partial-birth abortions are never necessary to protect the health of the mother.

“What the authors of the federal ban tried to do was to come up with a better evidentiary basis, showing that it's never medically necessary to use [partial-birth abortion],” said Richard Myers, professor of law at Ave Maria School of Law in Ann Arbor, Mich. He said the bill provides better evidence so that “we can say we're not jeopardizing a mother's health.”

About 30 states have passed bans on the procedure, but in many cases they've been overturned in court. A panel of the 6th U.S. Circuit Court of Appeals, however, upheld an Ohio ban Dec. 17.

That decision has buoyed pro-life advocates in Michigan, also part of the 6th Circuit, where they have just launched a drive to collect more than 250,000 signatures to overturn pro-abortion Gov. Jennifer Granholm's veto of a bill that would ban partial-birth abortions.

Ed Rivet, legislative director of Right to Life Michigan, says Granholm erred in vetoing the Legal Birth Definition Act in October.

“The governor missed a great opportunity to have this legislation enacted because it is asking the courts to consider the state's authority to define some outer parameter to abortion as well as a means to end partial-birth abortion,” he said. “Abortion has to end somewhere. If we can see you, you're born enough to be seen, you should be born enough to be protected by law.”

The Michigan House of Representatives passed the legislation by more than a two-thirds majority in September, but the Senate fell one vote short of the required “super majority.”

High Court Again

Legal scholars say the three suits challenging the federal bill, together with challenges to the partial-birth abortion ban in Ohio, might be rolled into one and addressed by the Supreme Court.

Even though the new legislation addresses the two objections previously set forth by the court — exceptions for the health of the mother and distinguishing partial-birth abortion from other abortion methods — it still might not pass muster at the high court, Myers said.

With the issue of abortion, “it seems that the usual rules go by the boards,” he said. “Unless you get some changes in personnel [at the Supreme Court], it's pretty much a long shot.”

The U.S. Department of Justice pledged to defend the new bill, however, saying in a November statement that it “will continue to strongly defend the law prohibiting partial-birth abortions using every resource necessary.”

“As President Bush pledged [during the signing ceremony],” the Justice Department reiterated, “‘By acting to prevent this practice, the elected branches of our government have affirmed a basic standard of humanity, the duty of the strong to protect the weak. The wide agreement among men and women on this issue, regardless of political party, shows that bitterness in political debate can be overcome by compassion and the power of conscience. And the executive branch will vigorously defend this law against any who would try to overturn it in the courts.’“

Despite the challenges to partial-birth abortion bans across the country, Ave Maria's Myers said efforts to enact legislation have had a positive, educational effect.

“It has focused people's attention on what goes on with an abortion, and they're horrified — as they should be,” he said. “People then think, ‘Is this really any different than a regular abortion, even though these other methods are still legal? Maybe they shouldn't be because now we're realizing what's at stake with an abortion.’“

“It's helped focus the attention on the fact that there's a baby here, which shouldn't be a huge surprise, but a lot of times people don't want to face reality,” he said. “These efforts have encouraged people. You read about how many more young people are now pro-life. They're saying this is what abortion means; if this is legal, we don't want to be part of that. It's had a useful educational effect.”

Patrick Novecosky writes from Ann Arbor, Michigan.