Two more appeals courts reject partial-birth abortion ban

By Tom Strode - Feb 15, 2006

The Supreme Court may soon consider the federal government’s judicially blocked ban on partial-birth abortion.

Two more federal appeals courts took issue with the 2003 law Jan. 31, ruling as another appeals court did last year that the measure is unconstitutional. With three different appeals courts on record against the ban, the Supreme Court may be ready to grant a review of the decisions.

The Ninth Circuit Court of Appeals, based in San Francisco, unanimously upheld a lower court decision against the Partial-birth Abortion Ban Act, but the Second Circuit Court of Appeals in New York City split 2-1 in affirming a similar federal court opinion. A primary basis for both rulings was the lack of an exception for the mother’s health in the law.

Those courts joined a July decision by the Eighth Circuit in ruling against the prohibition on a particularly grievous procedure performed on a nearly totally delivered unborn child normally in the fifth or sixth month of pregnancy. The Department of Justice has appealed the Eighth Circuit decision.

In the method, 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 before delivering a dead child.

Two of the Second Circuit judges criticized the Supreme Court’s 2000 ruling that struck down a state ban on partial-birth abortion. “[A]llowing a physician to destroy a child as long as one toe remains within the mother would place society on the path towards condoning infanticide,” Chester Straub wrote in his dissent, adding he found “the current expansion of the right to terminate a pregnancy to cover a child in the process of being born morally, ethically and legally unacceptable.”

Pro-lifers are hopeful the Supreme Court will review the decisions and the addition of new Associate Justice Samuel Alito will provide the necessary fifth vote to uphold the ban. Associate Justice Sandra Day O’Connor, whom Alito replaced, helped provide the 5-4 majority that struck down Nebraska’s ban on partial-birth abortion in 2000.

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