Judge Rules Partial Birth Abortion Ban Unconstitutional

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taken from > CBSNews <


(CBS/AP) A federal judge has declared the Partial-Birth Abortion Ban Act to be unconstitutional, saying the measure infringes on a woman's right to choose.

The ruling applies to the nation's 900 or so Planned Parenthood clinics and their doctors, who perform roughly half of all abortions in the United States.

U.S. District Judge Phyllis Hamilton's ruling Tuesday came in one of three lawsuits challenging the legislation President Bush signed last year.

"The act poses an undue burden on a woman's right to choose an abortion," she wrote.

Federal judges in New York and Nebraska also heard challenges to the law earlier this year but have yet to rule. All three judges had temporarily blocked the law's implementation while considering the cases.

President Bush signed the bill in November, saying "a terrible form of violence has been directed against children who are inches from birth while the law looked the other way."

In the banned procedure — known as intact dilation and extraction to doctors, but called partial-birth abortion by opponents — the living fetus is partially removed from the womb, and its skull is punctured or crushed.

Justice Department attorneys argued that the procedure is inhumane, causes pain to the fetus, and is never medically necessary.

Abortion proponents argued that a woman's health during an abortion is more important than how the fetus is terminated, and that the banned method is often a safer solution that a conventional abortion, in which the fetus is dismembered in the womb and then removed in pieces.

The measure, which President Clinton had twice vetoed, was seen by abortion rights activists as a fundamental departure from the Supreme Court's precedent in Roe v. Wade. It shifted the debate from a woman's right to choose and focused on the plight of the fetus.

Abortion rights advocates said the law was the government's first step toward outlawing abortion. Violating the law carries a two-year prison term.

Late last year, Hamilton, a Clinton appointee, and federal judges in New York and Lincoln, Neb., blocked the act from being enforced pending the outcome of the court challenges. They began hearing testimony March 29.

Doctors have construed the Supreme Court's decision in Roe. v. Wade to mean they can perform abortions usually until the 24th to 28th week after conception, or until the "point of viability," when a healthy fetus is thought to be able to survive outside the womb. Generally, abortions after the "point of viability" are performed only to preserve the mother's health.

Doctors at about 900 abortion clinics practice under the Planned Parenthood umbrella, performing about half the nation's 1.3 million annual abortions.

The Nebraska and New York cases are expected to conclude within weeks. The outcomes, which may conflict with one another, will almost certainly be appealed to the Supreme Court.

The New York case was brought by the National Abortion Federation, which represents nearly half the nation's abortion providers. The Nebraska case was brought by a few abortion doctors.

"This doesn't automatically apply nationwide, but obviously its an important victory for opponents of the ban and defeat for supporters of the law," CBS News legal analyst Andrew Cohen said.

"This ruling shouldn't come as a surprise to supporters of the ban, who were told by some legal experts that the law was worded too much like an earlier ban that was struck down by the Supreme Court," Cohen said.

The Supreme Court in 2000 overturned a Nebraska partial-birth abortion law because it did not allow the banned procedure even when a doctor believes the method is the best way to preserve the woman's health.

To get around that decision, Congress simply declared that the procedure is never medically necessary — and during weeks of testimony, doctors testifying for the government stressed that same point — claiming that there are better alternatives to the method, and that it may even be harmful to women.

Witnesses for the abortion providers, however, testified in all three trials that the banned method is often preferred and sometimes necessary to preserve a woman's health.

Congressional sponsors said the ban would outlaw only 2,200 or so abortions a year. But abortion providers testified the banned method can happen even at times when doctors try to avoid it, such as when they attempt to remove the fetus from the womb in pieces.

Because of the possibility that the fetus may partially exit a woman during an otherwise legal procedure, abortion rights advocates said the law could ban almost all second-trimester abortions, which account for about 10 percent of all abortions in the United States.

Opponents of the ban also say that while it makes an exception for cases where the life of a mother is threatened by physical illness or injury, there is no allowance for risk to the health of the mother, or for mental illnesses.

Originally Posted by question

Abortion proponents argued that a woman's health during an abortion is more important than how the fetus is terminated, and that the banned method is often a safer solution that a conventional abortion, in which the fetus is dismembered in the womb and then removed in pieces.

How is it more safe to stop a delivery, kill the baby, then deliver a dead baby than to simply deliver the baby without taking the additional step of killing it?

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It makes sense because if the mother's life is in danger because the baby is taxing her phsyical resources and causing grave problems, killing the child would stop the taxation of the mother's body and provide relief. Pregnancy in and of itself is very taxing on the famle body. The act of birth is also incredibly taxing on the mother's body. Preeclampsia is a perfect example of how the stress of pregnancy can cause damage to a woman's body, and potentially put her life at risk.

Originally Posted by xiannaix

How is it more safe to stop a delivery, kill the baby, then deliver a dead baby than to simply deliver the baby without taking the additional step of killing it?

Originally Posted by question

It makes sense because if the mother's life is in danger because the baby is taxing her phsyical resources and causing grave problems, killing the child would stop the taxation of the mother's body and provide relief. Pregnancy in and of itself is very taxing on the famle body. The act of birth is also incredibly taxing on the mother's body. Preeclampsia is a perfect example of how the stress of pregnancy can cause damage to a woman's body, and potentially put her life at risk.

Yes, but, it delays the process to kill the child first. The baby still must be delivered regardless of whether it is alive or dead. Thus - the procedure would prolong the "taxation" which runs counter to your argument.

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I'm failing to see how it "delays the process" other than stopping the pushing. Stress is reduced as soon as the woman stops pushing, because she's no longer straining her entire body.

Originally Posted by xiannaix

Yes, but, it delays the process to kill the child first. The baby still must be delivered regardless of whether it is alive or dead. Thus - the procedure would prolong the "taxation" which runs counter to your argument.

Originally Posted by question

I'm failing to see how it "delays the process" other than stopping the pushing. Stress is reduced as soon as the woman stops pushing, because she's no longer straining her entire body.

The baby can be pulled out with a suction cup very quickly - I've seen it done. That is faster than stopping the pushing, killing the baby and then pulling it our with a suction cup. Is that more clear on why the process takes longer to deliver a dead baby?

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But if the baby being alive, is causing the mother distress how does delivering a live baby benefit the mother? Suction cup or not, the fact that the mother's heart is beating blood for two organisms still affects the mother. Stabalization of the patient is what doctors are concerned the most with.

Originally Posted by xiannaix

The baby can be pulled out with a suction cup very quickly - I've seen it done. That is faster than stopping the pushing, killing the baby and then pulling it our with a suction cup. Is that more clear on why the process takes longer to deliver a dead baby?

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I think the practice is rather gruesome, but I think doctors should be able to reserve the right to terminate a pregnancy in order to save the mother's life. A ban was not neccessary when a form signed by the mother would suffice. Something along the lines of:

In the event of a life and death situation for the mother, do you authorize termination of the pregnancy, in order to save your life?

A ban is too broad and oppressive, especially when it grants more rights to an unborn child, than to the person that made the choice to gestate the child.

Originally Posted by question

But if the baby being alive, is causing the mother distress how does delivering a live baby benefit the mother? Suction cup or not, the fact that the mother's heart is beating blood for two organisms still affects the mother. Stabalization of the patient is what doctors are concerned the most with.

The primary issue is time - how long the mother is in distress. Getting the baby out is the sole factor in reducing that stress. It adds a step to kill the baby before getting him or her out, thus prolonging the time the mother is under stress..... which is more harmful.



Think of it as a bullet - one that's presence in the mother is killing her. Is it better to get the bullet out right away or to partially remove it, then carve it up a bit and then remove it?

So too, killing the baby partially inside the mother doesn't immediately remive the risk from the mother - it is the presnce of the child partially inside her that causes the stress.

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But it could also be argued that there are differnet levels of stress. I'm in no way advocating this practice to be the norm, but I do feel that in the event of an emergency, the choice should be left to the doctor, the mother, or the family of the mother if say, the mother is unconcious. This isn't a choice that the government should be allowed to make for people.

Originally Posted by xiannaix

The primary issue is time - how long the mother is in distress. Getting the baby out is the sole factor in reducing that stress. It adds a step to kill the baby before getting him or her out, thus prolonging the time the mother is under stress..... which is more harmful.

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I don't think any of us are qualified to make that choice. I know I'm not, I don't have an MD OBYGYN next to my name =)

Originally Posted by xiannaix

Think of it as a bullet - one that's presence in the mother is killing her. Is it better to get the bullet out right away or to partially remove it, then carve it up a bit and then remove it?

Originally Posted by question

But it could also be argued that there are differnet levels of stress. I'm in no way advocating this practice to be the norm, but I do feel that in the event of an emergency, the choice should be left to the doctor, the mother, or the family of the mother if say, the mother is unconcious. This isn't a choice that the government should be allowed to make for people.

If the stress level is low enough to not warrant immediate removal of the child your argument loses even more. With less stress it is even safer to deliver a live baby rather than a dead one.

There should be a presumption that it is preferable to deliver a live child rather than having the luxury of taking one's time to kill it prior to delivery.

Originally Posted by question

I don't think any of us are qualified to make that choice. I know I'm not, I don't have an MD OBYGYN next to my name =)

I don't think an MD is necessary to weigh those options.

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Of course, but I don't think a ban of a procedure that is rarely used is neccessary. Doctors should be allowed to reserve the right to determine what they feel is best for their patient. They're the ones qualified to determine that. Not us.

Originally Posted by xiannaix

If the stress level is low enough to not warrant immediate removal of the child your argument loses even more. With less stress it is even safer to deliver a live baby rather than a dead one.

There should be a presumption that it is preferable to deliver a live child rather than having the luxury of taking one's time to kill it prior to delivery.

Originally Posted by question

Of course, but I don't think a ban of a procedure that is rarely used is neccessary. Doctors should be allowed to reserve the right to determine what they feel is best for their patient. They're the ones qualified to determine that. Not us.

I disagree.

This procedure, is being presented as being used only in emergency situations. As such, the procedure should never be planned. Can you tell me that it does not happen - that it is not done by appointment?

If it is conducted only in a situation where the option is kill baby or mother dies - that's no choice. However, the ban the court struck down would not prevent its use under those circumstances. Nor would I see it improper under those circumstances.