Reuters, January 31, 2006
Courts reject ban on partial-birth abortion
NEW YORK/SAN FRANCISCO (Reuters) - Two appeals courts ruled against the federal ban on partial-birth abortions on Tuesday, calling the 2003 law unconstitutional because it fails to make an exception for the health of the mother.
The rulings from the 2nd Circuit Court of Appeals in New York and the 9th Circuit in San Francisco were setbacks to abortion foes. The decisions could be appealed to the Supreme Court, which has two new justices recently appointed by President Bush.
The San Francisco appeals court unanimously rejected the law 3-0 and issued an injunction halting its enforcement. The New York court voted 2-1 against the law, but declined to issue an injunction, asking to hear more legal arguments.
The Bush administration is already appealing to the Supreme Court a similar decision by the 8th Circuit Court of Appeals in St. Louis. The high court has yet to act.
The federal Partial-Birth Abortion Ban Act has never taken effect because of court challenges.
The law's passage in Congress stoked the emotional debate over abortion as proponents of the ban described gruesome details of the procedure formally known as dilation and extraction.
In San Francisco, the 9th Circuit held the law banning late-term abortions is unconstitutional because it lacks an exception for the health of mothers, imposes an undue burden on a woman's right to seek an abortion before a fetus is viable, and is vague, "depriving physicians of fair notice of what it prohibits and encouraging arbitrary enforcement."
The New York panel said it agreed with a lower court "that the lack of a health exception renders the act unconstitutional."
The San Francisco panel said in light of the U.S. Supreme Court's recent decision in Ayotte v. Planned Parenthood of Northern New England, it concluded 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."
In the Ayotte case, the U.S. Supreme Court ruled New Hampshire should revisit its law requiring minors seeking abortions to notify their parents because the law failed to include an exception for threatening health emergencies requiring abortions.
The New York court did not reach the same conclusion as San Francisco on Ayotte, saying the Supreme Court only reaffirmed that any law restricting abortion had to require an exception for the health of the mother and that the issue of whether to remedy the New Hampshire law must be dealt with separately.
The Ayotte case was a state law and applied only to minors. The federal Partial-Birth Abortion Ban Act would apply to any woman who undergoes the procedure.