Posted on 02/01/2006 4:41:30 PM PST by Raquel
Feb 1, 3:24 AM EST
Appeals courts uphold abortion finding
By LARRY NEUMEISTER Associated Press Writer
NEW YORK (AP) -- Two federal appeals courts declared a law banning a type of late-term abortion unconstitutional, saying it lacks an exception for when a woman's health is in danger.
The rulings on the Partial Birth Abortion Ban Act are expected to be appealed to the U.S. Supreme Court, recently reconfigured with two new justices appointed by President Bush. A similar case from Nebraska already has been appealed.
The 9th U.S. Circuit Court of Appeals in California and the 2nd U.S. Circuit Court of Appeals in Manhattan issued the rulings Tuesday within hours of each other.
"We are reluctant to invalidate an entire statute," 9th U.S. Circuit Court of Appeals Judge Stephen Reinhardt wrote. "However, after considering all of the obstacles to our devising a narrower remedy, we conclude that such is our obligation."
Abortion rights activists see the 2003 law as a fundamental departure from the Supreme Court's 1973 precedent in Roe v. Wade.
The law 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.
President Bush signed the ban in 2003, but it was not enforced because of legal challenges in several states. The Bush administration has argued that the procedure is cruel and unnecessary, and causes pain to the fetus.
Chief Judge John M. Walker, a relative of former President George Herbert Walker Bush who serves in the 2nd U.S. Circuit Court of Appeals, said the application of the statue "might deny some unproven number of women a marginal health benefit."
"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.
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."
The 2nd Circuit ruling Tuesday 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.
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."
A federal judge in Nebraska also has ruled the ban unconstitutional. The Nebraska ruling was upheld in July by the 8th U.S. Circuit Court of Appeals and has been appealed to the U.S. Supreme Court.
Attorneys for the Planned Parenthood Federation, which brought the lawsuit heard in California, praised the ruling.
"Even though the supporters of this law purported to be banning one particular abortion procedure, the law as the court found would in fact chill doctors from performing virtually any second trimester abortion," said Eve Gartner, senior staff attorney for Planned Parenthood and lead counsel in the 9th Circuit case.
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Associated Press writer Dan Goodin contributed to this report from San Francisco.
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Sorry. I think if a woman's health is in danger from the pregnancy then abortions should be allowed.
Sounds like the circuit courts have punted to the newly configured SCOTUS..
the problem with that is, all they have to do to determine if it is detrimental to the womans health is say "she just can't mentally handle having a baby right now".
OK ... here's the deal for Appeal Court Justices. If your rulings are overturned by the United States Supreme Court, you are automatically demoted 1 court level down. After 3 wrong rulings, along with the 2 more demotions downward, you are dismissed as a judge, even for dog shows.
Well said, Judge Straub. I am afraid that we are there already.
If the woman's life is in danger, I agree. However, the partial-birth procedure is never medically necessary. In the article Judge Straub mentions this.
In addition, I think the whole "women's health" issue is a sham. No one will stop a doctor from aborting a baby in an emergency room if that is what is required to save a life. But that is the issue - PBA is never required.
Then you put it into the law an exception for the "physical health" of the mother. And in any event, such legal minutae is for judges and juries to decide whether "depression" or "stress" is a legitimate defense.
Back during the very first vote on partial birth abortions, I believe in 1994, there were 10 of the nation's highest respected doctors appearing before the Senate committee. A Republican Senator (Hatch, I believe) asked something very similar to, "Under what circumstance would a woman's life be in danger if a tri-semester fetus were removed from the mother alive instead of killing it first?"
The question went down the line to each of the 10 doctors and each one responded, "NEVER!"
'Health of the mother' exceptions will allow every abortion being committed now to continue being committed.
Don't fall for such a transparently phony ploy.
This law was also struck down by other federal appellate courts, including the one in Nebraska.
Yep.
C. Everett Coop, the Surgeon General under Ronald Reagan, a lifelong obgyn, said that of the tens of thousands of babies he delivered in his career, there wasn't one that required killing the child to save the life of the mother.
The issue here is partial-birth abortion. It means exactly what it says. The infant is halfway out of its mother's womb, and the Doctor inserts a needle into the neck of the child killing it. There is no disputing this. If you think this is o.k, then you are in the minority. My suggestion is to do a little more research into the subject, and you'll find that legalized abortion is hurting women, and the main stream media don't want you to know about it.
In what country would this be? In America legislatures make the laws. So wherever the heck you hail from where judges and juries make laws you can have it.
You're right there -- just not sure if the SCOTUS is ready.
Thanks for the info, Lurking. What's your position?
Many women find out after they become pregnant that their bone structure presents serious risks to their pelvis and spine during childbirth.
Banning this procedure for ALL cases of the woman's health, even those way out in left field, isn't right.
PING
I never suggested judges and juries MAKE laws. I said judges and juries (and lawyers for that matter) help interpret and apply the law. That's what the courtrooms are for.
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