Eighth Circuit Court of Appeals rejects partial birth ban

By Tom Strode - Jul 15, 2005 -

The Partial Birth Abortion Ban Act still has found no court willing to uphold its constitutionality.

A three-judge panel of the Eighth Circuit Court of Appeals in St. Louis, Mo., unanimously struck down the 2003 federal law July 8, ruling it was unconstitutional because it does not include an exception to protect the health of the mother. The measure prohibits an abortion procedure performed on a nearly totally delivered unborn child normally in the fifth or sixth month of pregnancy.

The opinion was the first of three on the law due from appeals courts. Last year, federal judges in New York City, San Francisco and Lincoln, Neb., invalidated the ban in separate cases. The U.S. Justice Department appealed all three decisions. The Second Circuit in New York City and the Ninth Circuit in San Francisco have yet to issue rulings in the cases appealed to those courts.

The Eighth Circuit’s opinion came in an appeal of a decision by federal judge Richard Kopf of Lincoln. Kopf ruled the federal ban was unconstitutional because it lacked a health exception and imposed an undue burden on abortion rights.

The federal law bars a procedure in which a doctor delivers an intact baby, feet first, until only the head is left in the birth canal. The doctor pierces the base of the infant’s skull with surgical scissors, then inserts a catheter into the opening and suctions out the brain. The technique provides for easier removal of the baby’s head.

The Ethics & Religious Liberty Commission and six other organizations signed onto a friend-of-the-court brief authored by the Christian Legal Society in support of the law before the Eighth Circuit.

Supporters of a ban on partial-birth abortion have been unwilling to include a health exception because it would basically render the law meaningless. In its 1973 decisions legalizing abortion, the Supreme Court defined maternal health so expansively it had the practical effect of permitting abortion for any reason throughout all stages of pregnancy.

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