Justice Department challenges partial-birth abortion ruling

LINCOLN, Neb. — The Justice Department argued Nov. 30 that a Nebraska judge who ruled that the partial-birth abortion ban is unconstitutional ignored evidence gathered by Congress in passing the law.

The appeal to the 8th U.S. Circuit Court of Appeals challenges the September ruling by U.S. District Judge Richard Kopf of Lincoln.

“The Partial-Birth Abortion Ban Act of 2003 prohibits ... one particular method of abortion that Congress, after nine years of hearings, found to be gruesome, inhumane, never necessary to preserve the health of women, and less safe than other readily available abortion methods,” the appeal said.

Kopf ruled the ban, while containing an exception to save the life of the mother, is unconstitutional because it makes no such exception for the woman’s health. Supporters of the ban pointed out that making an exception for a woman’s “health” could lead to an exceedingly broad interpretation, including a woman’s mental or emotional state. Such an exception could allow a woman to obtain a partial-birth abortion because she doesn’t feel emotionally ready to have a baby.

The judge also said the ban posed an “undue burden” on a woman’s “right” to an abortion.

Kopf’s ruling followed decisions overturning the law by federal judges in New York and San Francisco. Those decisions also have been appealed.

President George W. Bush signed the abortion ban last year, but it was not enforced because of the legal challenges.

The ban applies to partial-birth abortions, a procedure doctors call “intact dilation and extraction,” or D&X. During the procedure, generally performed in the second trimester, a baby is partly delivered from the womb. The doctor then crushes the baby’s skull, killing it.

Kopf maintained that partial-birth abortions should remain legal in order to provide a “safe” form of an abortion. The Justice Department, however, said Kopf credited “disputed anecdotal evidence regarding possible safety advantages of partial-birth abortion, while simultaneously discounting other evidence regarding its possible safety drawbacks.”

Abortion doctors perform an estimated 140,000 partial-birth abortions annually.

EP News
Published, January 2005

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