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Nebraska Judge Third To Strike Down Federal Abortion Ban Due to Lack of Health Exception; DOJ To Appeal
[Sep 09, 2004]
U.S. District Judge Richard Kopf in Lincoln, Neb., on Wednesday became the third judge to strike down a federal ban on so-called "partial-birth" abortion because the law does not include an exception to protect a pregnant woman's health, the Omaha World-Herald reports (Tysver, Omaha World-Herald, 9/8). The Partial-Birth Abortion Ban Act (S 3) bans "an abortion in which a physician deliberately and intentionally vaginally delivers a living, unborn child's body until either the entire baby's head is outside the body of the mother, or any part of the baby's trunk past the navel is outside the body of the mother and only the head remains inside the womb, for the purpose of performing an overt act (usually the puncturing of the back of the child's skull and removing the baby's brains) that the person knows will kill the partially delivered infant." Abortion providers who violate the ban could face felony charges, up to two years in prison and fines of up to $250,000. The Department of Justice has been defending the law in three separate trials after federal judges in San Francisco, New York and Nebraska each issued temporary restraining orders to prevent enforcement of the ban following President Bush's November 2003 signing of the measure. The restraining orders were issued in response to lawsuits filed by Planned Parenthood Federation of America, the American Civil Liberties Union on behalf of the National Abortion Federation and the Center for Reproductive Rights on behalf of four abortion providers. Each lawsuit alleged that the law is unconstitutional because of the absence of a health exception. In place of a health exception, the law includes a long "findings" section that documents medical evidence presented during congressional hearings that, according to supporters of the law, indicates that the procedures banned by the law are never medically necessary (Kaiser Daily Reproductive Health Report, 8/27).
Ruling Details
Kopf's more-than-400-page ruling said that Congress' finding that the banned procedure is never medically necessary is "factually unsound," according to Reuters (Gillam, Reuters, 9/8). Kopf, who four years earlier ruled a similar Nebraska ban unconstitutional, said that the federal law is "vague" and that Congress "ignored" testimony from doctors who said the procedure is sometimes necessary to protect a pregnant woman's health, according to USA Today. Kopf wrote, "According to responsible medical opinion, there are times when the banned procedure is medically necessary ... and a respectful reading of the congressional record proves that" (Willing, USA Today, 9/9). Kopf said that one of DOJ's own witnesses testified during the trial that the procedure may be necessary to protect a woman's health, according to the World-Herald. "The long and short of it is Congress arbitrarily relied upon the opinions of doctors who claimed to have no (or very little) recent and relevant experience with surgical abortions and disregarded the views of doctors who had significant and relevant experience with these procedures," Kopf wrote (Omaha World-Herald, 9/8). Kopf's decision "echoed" the earlier rulings by federal judges in San Francisco and New York, who also struck down the law for lacking a health exception, the AP/Boston Globe reports (O'Hanlon, AP/Boston Globe, 9/9). U.S. District Judge Richard Casey of New York -- who has called the banned procedure "brutal, barbaric and uncivilized" -- last month struck down the law, saying that it is unconstitutional because the Supreme Court has "made clear" that a health exception is required for any such law. U.S. District Judge Phyllis Hamilton of the Northern District of California in June also deemed the federal ban unconstitutional. Hamilton's ruling prevented the law from being enforced against the 900 PPFA clinics nationwide and PPFA-affiliated physicians (Kaiser Daily Reproductive Health Report, 8/27).
Complete article online
[Sep 09, 2004]
U.S. District Judge Richard Kopf in Lincoln, Neb., on Wednesday became the third judge to strike down a federal ban on so-called "partial-birth" abortion because the law does not include an exception to protect a pregnant woman's health, the Omaha World-Herald reports (Tysver, Omaha World-Herald, 9/8). The Partial-Birth Abortion Ban Act (S 3) bans "an abortion in which a physician deliberately and intentionally vaginally delivers a living, unborn child's body until either the entire baby's head is outside the body of the mother, or any part of the baby's trunk past the navel is outside the body of the mother and only the head remains inside the womb, for the purpose of performing an overt act (usually the puncturing of the back of the child's skull and removing the baby's brains) that the person knows will kill the partially delivered infant." Abortion providers who violate the ban could face felony charges, up to two years in prison and fines of up to $250,000. The Department of Justice has been defending the law in three separate trials after federal judges in San Francisco, New York and Nebraska each issued temporary restraining orders to prevent enforcement of the ban following President Bush's November 2003 signing of the measure. The restraining orders were issued in response to lawsuits filed by Planned Parenthood Federation of America, the American Civil Liberties Union on behalf of the National Abortion Federation and the Center for Reproductive Rights on behalf of four abortion providers. Each lawsuit alleged that the law is unconstitutional because of the absence of a health exception. In place of a health exception, the law includes a long "findings" section that documents medical evidence presented during congressional hearings that, according to supporters of the law, indicates that the procedures banned by the law are never medically necessary (Kaiser Daily Reproductive Health Report, 8/27).
Ruling Details
Kopf's more-than-400-page ruling said that Congress' finding that the banned procedure is never medically necessary is "factually unsound," according to Reuters (Gillam, Reuters, 9/8). Kopf, who four years earlier ruled a similar Nebraska ban unconstitutional, said that the federal law is "vague" and that Congress "ignored" testimony from doctors who said the procedure is sometimes necessary to protect a pregnant woman's health, according to USA Today. Kopf wrote, "According to responsible medical opinion, there are times when the banned procedure is medically necessary ... and a respectful reading of the congressional record proves that" (Willing, USA Today, 9/9). Kopf said that one of DOJ's own witnesses testified during the trial that the procedure may be necessary to protect a woman's health, according to the World-Herald. "The long and short of it is Congress arbitrarily relied upon the opinions of doctors who claimed to have no (or very little) recent and relevant experience with surgical abortions and disregarded the views of doctors who had significant and relevant experience with these procedures," Kopf wrote (Omaha World-Herald, 9/8). Kopf's decision "echoed" the earlier rulings by federal judges in San Francisco and New York, who also struck down the law for lacking a health exception, the AP/Boston Globe reports (O'Hanlon, AP/Boston Globe, 9/9). U.S. District Judge Richard Casey of New York -- who has called the banned procedure "brutal, barbaric and uncivilized" -- last month struck down the law, saying that it is unconstitutional because the Supreme Court has "made clear" that a health exception is required for any such law. U.S. District Judge Phyllis Hamilton of the Northern District of California in June also deemed the federal ban unconstitutional. Hamilton's ruling prevented the law from being enforced against the 900 PPFA clinics nationwide and PPFA-affiliated physicians (Kaiser Daily Reproductive Health Report, 8/27).
Complete article online
