Court Overturns Partial Birth Abortion Ban Act

On June 1, federal judge Phyllis Hamilton struck down the so-called Partial Birth Abortion Ban Act as unconstitutional on three grounds. The federal law -- passed by the Republican-controlled Congress and signed into law by President Bush -- was challenged in court by the Planned Parenthood Federation of America.

But while the judge's landmark ruling protects doctors who provide abortions at all Planned Parenthood clinics throughout the country, she declined to issue a more comprehensive injunction protecting all abortion providers, out of deference to two other challenges to the law currently underway in Nebraska and New York. The Bush administration has vowed to appeal any and all adverse rulings, which could involve three separate circuit courts. If there's a split in the rulings of the circuit courts, the case will go to the U.S. Supreme Court.

Between The Lines' Melinda Tuhus spoke with Beth Parker, the San Francisco attorney who won the case on behalf of Planned Parenthood. She summarizes the judge's ruling, examines current public support for abortion rights, and what a possible second term for George W. Bush could mean for women seeking abortions.

Beth Parker: The three grounds are: The first, it was unconstitutional because it imposes an undue burden on a woman’s right to choose to have an abortion. Under the existing law, women can have pre-viability abortions and Congress cannot impose restrictions on that. Pre-viability is where the fetus cannot survive outside the mother. So she found it was an undue burden on a woman’s ability to choose to have a second-trimester abortion -- basically abortions from approximately 12-14 weeks to 23 weeks of pregnancy. The second reason she found it unconstitutional was that it was so vague that doctors performing procedures couldn’t tell what type of procedures were banned by the act and they were exposed to up to two years in prison if they violated the ban. The third reason she found it unconstitutional was that it failed to include a health exception, and the Supreme Court in a case that came down several years ago, Stenberg v. Carhart, said you need to have a health exception in any ban on abortion procedures if there are some circumstances for some women where it was necessary. The act did include a very limited exception if the procedure was necessary to save the life of the mother, but it did not include any exception where the procedure was necessary to save the health of the mother. And at trial, we presented extensive evidence there are many circumstances where women have health conditions that are exacerbated by pregnancy, such as asthma and diabetes, and under those circumstances, often an abortion will alleviate the health conditions and therefore these procedures are safest under the circumstances.

Between The Lines: The judge was very critical, wasn’t she, of some of the wording in the law, including its title, the Partial Birth Abortion Ban Act, which has always struck me as a very politicized expression.

Barbara Parker: She said it was not a medically recognized term. It was chosen -- I don’t believe she said this -- but in fact, it was chosen by the anti-choice movement as a way to really do a public relations campaign against second-trimester abortions because it’s not a medically recognized term.

Between The Lines: Considering all the chipping away at abortion rights over the past several years, were you surprised by this victory? And how important was it?

Barbara Parker: It’s definitely a sweeping and landmark victory. I wasn’t surprised by the result because the medical evidence we presented at trial was really overwhelming, that the ban is so broad that it affects all second-trimester abortions, or almost all second-trimester abortions, that procedures -- even the very narrow procedures the government claimed it affected -- was necessary in many instances to protect a woman’s health and because of lethal fetal anomalies. And the law is also very well established that you need to have a health exception in certain circumstances. That came out of the U.S. Supreme Court several years ago. And Congress was very well aware of the law when it passed that ban and it chose to do so nonetheless.

Between The Lines: What procedure is actually used for a second-trimester abortion?

Barbara Parker: Medical procedure is very much of a combination of skill and talent and it also depends very much on the individual circumstances that are presented by a woman -- anatomy and where she is in the pregnancy. So there are various procedures that different doctors use, and most doctors attempt to perform abortions in the manner that is most safe for the woman and their preference is to extract the fetus as much intact as possible, because it reduces harm and trauma to the woman. One of the things that Judge Hamilton pointed out is that during the congressional hearings there was no medical testimony from doctors who perform second-trimester procedures, that the testimony was very one-sided, as opposed to the testimony she heard at trial, where doctors who performed second-trimester abortions testified at length about the procedures they used and the reasons why they perform abortions during the second trimester.

Between The Lines: What is the state of support for abortion rights currently?

Barbara Parker: There was a poll reported in our paper this morning (June 4) about the views of Californians about abortion, and in the 70 percents felt that the abortion laws should either remain where they are or should be broadened, and only 22 percent felt there should be further restrictions on access to abortion.

Between The Lines: Now, if President Bush continues in power after the November election, it’s all but certain that he’ll appoint at least one anti-abortion Supreme Court judge. If that were to happen, all these laws regarding the legality of certain types of abortion would be out the window, right?

Barbara Parker: That’s right. If one of the justices who’s been in the majority of these cases steps down, I think we can all anticipate a major battle over the nomination of someone to replace him or her, because abortion clearly hangs in the balance.

Contact Planned Parenthood Federation of America at http://www.plannedparenthood.org

Melinda Tuhus is a producer of Between The Lines, which can be heard on more than 35 radio stations. This interview excerpt was featured on the award-winning, syndicated weekly radio newsmagazine, Between The Lines ( http://www.btlonline.org) for the week ending June 18, 2004. This Between The Lines Q&A was compiled by Melinda Tuhus and Anna Manzo..

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