The Courts Speak: Judges all over the Country Say No to Abortion Ban

On September 8, 2004, a U.S. District Judge in Lincoln, Nebraska ruled unconstitutional the ban on so-called partial birth abortion.

Judge Richard Kopf’s decision reiterates those of two other judges who also tried the case and found the law unable to hold up to constitutional scrutiny. Kopf agreed with New York District Court Judge Richard C. Casey, who ruled against the federal abortion ban in August 2004 because it does not protect women’s health.

The law outlaws the procedure opponents call partial-birth and doctors call dilation and extraction (D&X) even when the mother’s health is at risk. The law permits the procedure only when the mother’s life is at risk.

Judge Kopf found the law to be unconstitutional and "unreasonable" for this reason, and Judge Casey, who called the procedure "brutal," also said that it might, in some cases, be essential to the safety of the mother.

U.S. District Judge Phyllis Hamilton in San Francisco went further in June 2004, saying that the ban "poses an undue burden on a woman’s right to choose an abortion." Judge Hamilton’s ruling, which has already been appealed by the Justice Department, echoes the Supreme Court’s decision on an almost identical law passed by the Nebraska state legislature.

Supreme Court context

In 2000, the Supreme Court ruled the Nebraska state law unconstitutional for two reasons: imprecise language and women’s health. The majority of justices felt that the law uses vague language to ban a variety of abortion procedures, not just the dilation and extraction method.

Of course, vague language is not unconstitutional. But the majority of justices said that because the law was unspecific, it could have been interpreted as a ban on abortion procedures beyond D&X

In essence, this means that the law violated the rights granted by Roe V. Wade, which secures a woman’s right to end a pregnancy before the fetus can live independently, or, before viability. As long as Roe V. Wade stands, the government cannot interfere with early-term abortions.

Women’s health

The Supreme Court’s second reason for declaring the Nebraska law unconstitutional is concern for women’s health.

Like the Nebraska ban, the federal ban does not include a health exception. This means that a doctor cannot use the D&X method when a woman’s health is at risk, even if the doctor believes that D&X is the safest procedure.

The federal ban was the first time that Congress has ever banned a medical procedure. Under this law, doctors can go to jail for performing D&X.

The law’s opponents say that when Congress tells doctors what they can and cannot do, government is intruding upon the doctor/patient relationship. If D&X is banned, they say, women may suffer severe health consequences, including uterine rupture, stroke, paralysis, and/or infertility.

Defining "necessary"

The ban’s supporters claim that D&X is never necessary. Ironically, the law does permit the procedure if a woman’s life is in danger.

Doctors disagree on the necessity of the procedure. Some feel that the procedure is a needed option for late-term abortions and some do not. The ban’s opponents say that this disagreement proves that the decision should be left up to doctors.

The ban’s advocates claim that a health exception would invalidate the law altogether since "health" can be regarded as mental, emotional, or physical. Since possible health risks are broad and varied, the health exception may amount to a loophole that allows doctors to perform D&X.

What’s the philosophy?

At play are competing philosophies about rights - women’s rights, reproductive rights, doctors’ rights, fetal rights, and court’s rights.

To determine your philosophy of the issue, consider all of these issues. How much power should a woman have over her own reproduction? Should doctors or legislators decide the correctness of medical procedures? As technology makes it possible for younger newborns to survive without the mother, should our laws change? What role should the courts play in the abortion discussion?

Discuss these issues with other WomenMatter readers in one of our online forums. And if Women’s Rights are important to you, sign up for an e alert, and we’ll keep you posted on the topic.

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Update Posted on: 9/20/2004