Appeals Courts Uphold Abortion Finding

NEW YORK - Two federal appeals courts on opposite sides of the country declared the Partial Birth Abortion Ban Act unconstitutional Tuesday, saying the measure lacks an exception for cases in which a woman's health is at stake.
The first ruling came from a three-judge panel of the 9th U.S. Circuit Court of Appeals. Hours later, a three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan issued a similar decision in a 2-1 ruling.

The New York decision affirmed a 2004 ruling by a judge who upheld the right to perform the procedure even as he described the procedure as "gruesome, brutal, barbaric and uncivilized."

Tuesday's ruling was marked by an unusually sharp dissent by Judge Chester J. Straub, who said he believed Congress' determination that the procedure was never medically necessary to protect a women's health was well founded and supported by a lower court ruling.

"Allowing a physician to destroy a child as long as one toe remains within the mother would place society on the path towards condoning infanticide," he said.

He added: "I find the current expansion of the right to terminate a pregnancy to cover a child in the process of being born morally, ethically and legally unacceptable."

The California court said the law was vague and so broad that no other remedy was possible except to throw it out.

"We are reluctant to invalidate an entire statute," Circuit Judge Stephen Reinhardt wrote. "However, after considering all of the obstacles to our devising a narrower remedy, we conclude that such is our obligation."

The panel also rejected arguments made by the Justice Department that there was general agreement among doctors that such late-term abortions were never necessary to preserve the health of a woman.

"The government all but admits in its reply brief that no medical consensus exists regarding the need for the prohibited procedures to preserve the health of women in certain circumstances," the panel concluded.

Justice Department attorneys also said the procedure is inhumane and causes pain to the fetus. A government lawyer argued it "blurs the line of abortion and infanticide."

The law, signed in 2003, banned a procedure known to doctors as intact dilation and extraction and called partial-birth abortion by abortion foes. The fetus is partially removed from the womb, and the skull is punctured or crushed. The procedure is generally performed in the second trimester.