Two Courts Nix Ban on Partial-Birth Abortion

By Josh Richman, STAFF WRITER

Two federal appeals courts ruled the federal partial-birth abortion ban unconstitutional Tuesday, with a San Francisco-based court quoting the U.S. Supreme Court’s words from just two weeks ago to justify striking the law down in its entirety.

The 2003 ban lacks the health exception required of all abortion regulations without proof the procedure is never needed to protect women’s health, 9th U.S. Circuit Court of Appeals Judge Stephen Reinhardt wrote for himself and circuit Judges Sidney Thomas and William Fletcher.

It also imposes an undue burden on a woman’s right tochoose a pre- viability abortion, Reinhardt wrote, and is too vague both because it does not adequately warn doctors of exactly what it prohibits and because it permits arbitrary and discriminatory enforcement.

The 2nd Circuit appeals court in New York also struck down the law Tuesday, but only on the health-exception basis; one judge dissented from a two-judge majority.

The 8th Circuit appeals court in St. Louis had issued a similar ruling — also based solely on the lack of a health exception — in July, and the U.S. Supreme Court was expected to announce soon if it will review that case as the Justice Department has asked. That announcement could be delayed if it seems the government will appeal Tuesday’s rulings, too. The Justice Department is reviewing the new rulings, spokesman John Nowacki said.

Planned Parenthood Federation of America senior staff attorney Eve Gartner, who argued the case to the 9th Circuit, said “in several respects the 9th Circuit’s ruling is the most complete case to go up to the Supreme Court.”

The 9th Circuit went further than its peers by not only finding the law overly broad and unconstitutionally vague but also by addressing a remedy in light of the U.S. Supreme Court’s Jan. 18 Ayotte v. Planned Parenthood decision on New Hampshire’s parental- notification law.

Despite earlier Supreme Court rulings and plenty of chances to limit the ban’s scope, Congress passed an overly broad ban it knew likely would run afoul of the courts, Reinhardt wrote.

“In so doing, Congress left it to the judiciary to sort out which parts of the statute are constitutional and which are not. This is precisely what Ayotte reminded us Congress may not do,” Reinhardt wrote.

“(W)e conclude that the only appropriate remedy is to enjoin enforcement of the Act and we now affirm the district court’s grant of a permanent injunction.”

Gartner said her clients are pleased the court saw that the harm to women posed by the law’s constitutional flaws and that the only way to fix the problem is to strike down the whole law.

Planned Parenthood Golden Gate President and Chief Executive Officer Dian Harrison, whose group joined its national parent organization in filing this lawsuit, said she is pleased with the case’s outcome.

“We do think it’s a momentous day for women’s health in this country, but it is interesting that at the same time we have a man confirmed to the Supreme Court who apparently could care less about women’s health issues in this country,” she said. “It’s almost a dichotomy, isn’t it?”

Gartner agreed there is a “sad irony” in these rulings coming as Alito replaces Justice Sandra Day O’Connor, the swing vote in a 2000 decision striking down Nebraska’s similar partial-birth abortion ban.

The federal law at issue threatens a two-year prison term for doctors performing what is known to physicians either as a “D&X” — dilation and extraction — or as an “intact D&E” — dilation and evacuation — in which the doctor brings the fetus out of the womb feet-first as intact as possible, deflating the skull with a needle before removing it completely. In a “disarticulated dilation and extraction,” the fetus is taken apart before removal.

The U.S. Supreme Court’s 2000 ruling in Stenberg v. Carhart deemed a similar Nebraska law unconstitutional because its broad language imposed an undue burden on a woman’s right to make an abortion decision, and it lacked an exception allowing the method when “necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

Congress in 2003 passed a law largely similar to Nebraska’s but with fact findings that the method “is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.” These court challenges have kept that law from taking effect.

In asking the Supreme Court to review the 8th Circuit case, the government argues that court erred by not giving substantial deference to Congress’ fact-finding that the procedure is never medically necessary. It also argues the appeals court erred by finding the lack of a health exception invalidates the law if the procedure is necessary to protect a woman’s health “in some instances” rather than in “a large fraction” of cases, which are standards set by earlier cases.

Contact Josh Richman at jrichman@angnewspapers.com.