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US Justice Department appeals against the rulings that banning partial birth abortion is unconstitutional

BMJ 2004; 329 doi: http://dx.doi.org/10.1136/bmj.329.7470.820-e (Published 07 October 2004) Cite this as: BMJ 2004;329:820
  1. Janice Hopkins Tanne
  1. New York

    The US Justice Department filed appeals against all three court rulings that found the federal law banning “partial birth abortion” unconstitutional. The US Conference of Catholic Bishops commended the Justice Department and said, “There is no place in a civilised society for this cruel and inhumane practice.”

    The federal law banning partial birth abortion was passed by Congress in 2003 and signed by President George Bush, who called it an “abhorrent” practice (BMJ 2003;327:1009). The law does not describe the technique in medical terms. Doctors say it may apply to intact dilatation and evacuation and to most techniques used in second trimester abortions.

    The law was immediately challenged in Nebraska, California, and New York. Courts in those states held it unconstitutional because it did not contain an exception allowing the procedure to protect a woman's health. Thus the courts prevented enforcement of the law and the Justice Department is appealing (BMJ 2004;328:1398, 12 Jun, News Extra).

    Abortion opponents fear that a “health exception” might include an exception to protect a woman's mental or emotional health.

    The Justice Department appealed all three rulings to the next level, circuit courts. Three different circuit courts will hear briefings in the next month or so, then hear oral arguments, and decide and issue written decisions in late 2005 or early 2006.

    Then the case may be appealed to the Supreme Court, which may or may not accept the case. Supporters of the law hope that the appeals might be heard by a more conservative Supreme Court in two or three years' time.

    Priscilla Smith, senior staff attorney for the Center for Reproductive Rights, involved in the Nebraska case, said that all decisions noted there was no “health exception” to allow the doctor to perform the procedure when it was needed to protect a woman's health. Eve Gartner, senior staff attorney for the Planned Parenthood Foundation of America, which contested the California case, said the law would criminalise virtually all second trimester abortions and that the law was so vaguely drafted that doctors did not have “fair notice” of what was banned.

    Diana Kasdan, a staff attorney with the American Civil Liberties Union, which represented the National Abortion Federation (a group of doctors who provide abortions) and also individual doctors, said she felt circuit courts would agree that because the law did not have a health exception it could cause harm to women's health.

    Whether the issue will go to the Supreme Court some years from now is not certain. If all three circuit courts agree that the federal law is unconstitutional, the Supreme Court may not review the case because only four years ago it reviewed a similar Nebraska state law and found it unconstitutional because it lacked an exception to protect a woman's health. If the courts disagree, the Supreme Court might step in to resolve the issue.

    The Supreme Court seldom reverses recent decisions, such as the decision on the Nebraska state law. The court may, however, be more inclined to review a federal law passed by Congress that challenged the court's Nebraska decision.

    Even when the Supreme Court reviews decisions, Ms Smith said, it is unusual for it to do so in a way that takes away rights previously granted—as in Roe v Wade, which gave American women the right to abortion, although the court may narrow the rights.

    Underlying the fight is the composition of the Supreme Court. Eight of the nine judges are over 65 and some may retire soon, giving whoever is elected president next month the right to appoint judges in line with his views.