Third Judge Rules Against Partial-Birth Abortion Ban

by Jenni Parker
September 9, 2004

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(AgapePress) - Another federal judge has ruled that the law banning partial-birth abortion is unconstitutional. Some experts say this latest ruling adds judicial weight that could prevent the issue from reaching the Supreme Court of the United States.

Yesterday (September 8) in a Lincoln, Nebraska, U.S. District Court, Judge Richard Kopf ruled against the Partial-Birth Abortion Ban Act, declaring Congress ignored information from the most experienced members of the medical community when the lawmakers "unreasonably" concluded the banned abortion procedure would never be necessary to protect a mother's health.

Gary Bauer of Campaign for Working Families considers the ruling to be just the latest reminder of a dangerous trend in American government. "The federal courts are out of control," he says. "Congress dealt with all of the issues that had been raised by the courts earlier. The record is clear. These are activist judges with their own agenda, and somewhere along the line the other two branches of government have got to put a stop to it."

Even before the PBA ban was enacted, Brown's organization warned that the pursuit of the ban would not end a single abortion. The ALL spokeswoman says the pro-life movement needs to work on an amendment that protects all life, born and unborn.

The Nebraska lawsuit was originally filed by the Center for Reproductive Rights on behalf of a group of abortion doctors, including Dr. LeRoy Carhart, the physician involved in another case that led to the overturning of a similar ban in Nebraska in 2000. According to Associated Press reports, Kopf's ruling against the ban mirrored the decisions by the two other federal judges in New York and San Francisco, who also agreed to hear constitutional challenges to the Partial-Birth Abortion Ban Act.

Although the ban was signed into law by President George W. Bush last year, it has not been enforced because these non-juried court challenges were pending. Now that all three judges have handed down decisions against the PBA ban's constitutionality, the Bush Administration is appealing the unfavorable rulings to higher courts.

While abortion-rights activists regard the enactment of the law prohibiting partial-birth abortion as a fundamental deviation from precedent set by the 1973 Roe v. Wade decision and subsequent legislation, pro-life advocates have hailed the ban as a victory for the principle of the sanctity of human life. Supporters of the Partial-Birth Abortion Ban Act contend that the late-term abortion procedure, which involves the partial delivery of a living child that is subsequently killed, is both inhumane and medically unnecessary.

Partial-birth abortions are usually performed during the second trimester, or between week 13 and 24 of pregnancy. At this stage it is possible for a doctor to detect an unborn baby's heartbeat, to determine the age and sometimes even the sex of the child, and to observe the development of physical features such as fingers, toes, eyelashes, and eyebrows.

The second trimester is also generally the stage when, during a partial-birth abortion, an unborn baby is partly removed from its mother's womb, alive, then has his or her skull punctured or crushed by the abortionist so it can be completely extracted.

In signing the Partial-Birth Abortion Ban Act on November 5, 2004, President Bush noted that through this procedure, "a terrible form of violence has been directed against children who are inches from birth." Bush and other pro-life supporters in government decry partial-birth abortion for its cruelty, particularly since researchers have revealed evidence suggesting unborn children are capable of experiencing pain.

Because of this fact, Senator Sam Brownback of Kansas and Congressman Chris Smith of New Jersey introduced the Unborn Child Pain Awareness Act last May. That bill would require abortionists to provide women seeking an abortion after week 20 with information regarding fetal pain awareness and to advise them of the availability of pain-reducing drugs.

In reaction to the Nebraska court's ruling against the Partial-Birth Abortion Ban Act, a spokesman for the National Right to Life Committee (NRLC) in Washington noted that the future of the ban could be directly tied to the upcoming presidential election.

NRLC Legislative Director Douglas Johnson commented that, while President Bush and his administration are committed to the banning the controversial abortion procedure, the pro-choice Democratic candidate John Kerry "has vowed that he will appoint to the Supreme Court only justices who share his views on abortion."

Johnson asserts that the next U.S. president's judicial appointments will weigh heavily in this matter. "Four years ago, five justices of the Supreme Court said that Roe V. Wade allows abortion providers to perform partial-birth abortions whenever they see fit," he says, "even on healthy women with healthy babies, if the providers claim some 'health' benefit. Future appointments to the Supreme Court will determine whether partial-birth abortion remains legal."

But some pro-life supporters are concerned that the question of the PBA Ban Act's constitutionality may never come before the U.S. Supreme Court for consideration. If the three federal judges who have ruled against the act are upheld on appeal, some legal experts have suggested that the highest court in the nation may decide not to address the issue at all.

But attorney Jay Sekulow, chief counsel for the American Center for Law and Justice, believes that possibility is unlikely. He says it is "very unusual" for the Supreme Court not to take a case in which an act of Congress has been struck down.

Still, some pro-lifers, including ALL's Judie Brown, are convinced the ban is doomed ultimately to fail. "I do not believe that the Partial-Birth Abortion bill will be upheld by the U.S. Supreme Court," she says. What she does believe, the pro-life advocate asserts, is that the recent lower court rulings against the ban demonstrate pro-choice judicial activists' "utter contempt for human beings' lives."