Abortion ban struck down Courts uphold right to perform partial-birth acts

Larry Neumeister Associated Press Feb. 1, 2006 12:00 AM

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 unanimous 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 it as "gruesome, brutal, barbaric and uncivilized."

Chief Judge John Walker, a relative of former President George H.W. Bush, said the court was "compelled by a precedent to invalidate a statute that bans a morally repugnant practice, not because it poses a significant health risk, but because its application might deny some unproven number of women a marginal health benefit."

He called on the Supreme Court to require a law's challenger to prove how women will be harmed by the law.

"Is it too much to hope for a better approach to the law of abortion, one that accommodates the reasonable policy judgments of Congress and the state legislatures without departing from established, generally applicable, tenets of constitutional law?" Walker wrote.

Tuesday's ruling was marked by an unusually sharp dissent by Judge Chester 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.

"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 spokesman John Nowacki said government lawyers were reviewing both rulings and declined to comment further. In the past, department attorneys have said the procedure is inhumane and "blurs the line of abortion and infanticide."