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US judge again rules that ban on partial birth abortion is unconstitutional

BMJ 2004; 329 doi: (Published 16 September 2004) Cite this as: BMJ 2004;329:644
  1. Janice Hopkins Tanne
  1. New York

    [Editor's note: Originally, our headline for this story was wrong. It was corrected on 17 September 2004.]

    The federal law banning “partial birth abortions” is heading, very slowly, to the Supreme Court. Three judges in separate jurisdictions ruled it unconstitutional and unenforceable because it did not include an exception to protect a woman's health. The Department of Justice said it would appeal.

    Pro-choice advocates fear that, years from now, a more conservative Supreme Court will uphold the law as constitutional, thus outlawing most abortions.

    The law was passed by Congress and signed by President Bush last year (BMJ 2003;327:1009). It was immediately challenged by five organisations involved with family planning, providing abortions, or civil rights. Major medical associations, including the American College of Obstetricians and Gynecologists, opposed the law.

    Judges in San Francisco, New York, and, last week, Nebraska said the law was unconstitutional (4 September, p 528). (See for details and documents.)

    When signing the law President Bush called the procedure “abhorrent.” The judge in the New York case called it “gruesome, brutal, barbaric, and uncivilised,” but nevertheless ruled that the procedure could not be outlawed because the law did not have a health exception.

    A Nebraska state law almost identical to the federal ban was challenged up to the Supreme Court by the same coalition of doctors', family planning, and civil rights groups. In 2002 the court ruled it unconstitutional in a narrow five to four decision because it lacked a health exception.

    The current law says the procedure is never medically necessary. Doctors who provide abortions testified that it was sometimes the best choice.

    Appeals of the three decisions will go to Circuit Courts of Appeal, which may rule by late 2005. If these courts disagree their decisions may be appealed to the Supreme Court. The Supreme Court accepts few appeals but may do so to clarify disagreements among lower courts. If it does not accept an appeal the law banning “partial birth abortions” will not go into effect, meaning that such abortions could still be performed.

    Priscilla Smith, lead counsel in the Nebraska case and director of the domestic legal programme of the Center for Reproductive Rights, said that anti-abortionists hope disagreements between the Circuit Courts will bring the case to a changed, more conservative Supreme Court.

    “The anti-abortionists have said the constitutionality of the law will be determined by a new court,” she said. Several of the Supreme Court's nine judges may retire. Important decisions have been narrowly decided by votes of five to four. If George Bush is re-elected, as the anti-abortionists hope, he will replace retiring judges with conservatives to uphold a ban on partial birth abortions.

    The controversial procedure is referred to as “dilatation and evacuation” or “intact dilatation and extraction” by obstetricians and gynaecologists. It is used mostly in second trimester abortions. Of the 1.3 million abortions done each year in the United States an estimated 2200 to 5000 are partial birth abortions. In these the cervix is dilated, the fetus is converted to a footling breech and extracted except for the head, which is decompressed, and the dead fetus is delivered vaginally (BMJ 2004;328:1398).

    However, the law could be interpreted to ban abortions between 12 and 15 weeks. In the United States, about 90% of abortions are performed at that stage.

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