Third Judge Strikes Down Partial-birth Abortion Ban

The third federal judge in recent weeks rejects the U.S. law that bans a late-term abortion procedure.
( [email protected] ) Sep 09, 2004 08:37 PM EDT

A third federal judge in Nebraska struck down a Congress law that bans partial-birth abortions in a case that is headed to the U.S. Supreme Court.

U.S. District Judge Richard Kopf ruled against the measure Wednesday, saying the banned procedure is sometimes medically necessary to protect the mother’s health.

Federal judges in New York City and San Francisco also rejected the ban in recent weeks.

LeRoy Carhart, an abortion doctor who won a U.S. Supreme Court case against a Nebraska law banning partial-birth abortion in 2000, filed the challenge against the U.S. ban.

Jay Sekulow, senior counsel of American Center for Law and Justice, which supports the ban, told USAToday that the "so-called health exception” is not a valid argument, referring to the procedure as “horrific.”

"In the opinion, the court refused to consider the expert testimony of well recognized and highly respected medical experts simply because they had not performed abortions,” said Sekulow in a statement. “This conclusion is not only legally flawed but shows the hostility the court exhibits to medical experts who have respect for human life. No one expected the constitutionality of the ban on partial-birth abortion to be decided at the federal district court level.

“We are hopeful that the appeals process will result in overturning the decisions of the lower courts,” he continued, “and conclude that the law designed to end the horrific procedure known as partial-birth abortion survives these constitutional challenges. The stage is now set for a lengthy and critical legal battle that ultimately will end up at the Supreme Court of the United States."

The Partial-Birth Abortion Ban Act was passed by Congress then signed by Bush in November 2003, banning a late-term abortion procedure where doctors partially deliver a fetus then crush or puncture its skull to kill it.

After signing the bill, Bush said it "affirmed a basic standard of humanity, the duty of the strong to protect the weak."

The Justice Department said Wednesday it will defend the ban and has already filed an appeal in the San Francisco ruling.

"After signing this act of Congress, President Bush pledged that 'the executive branch will vigorously defend this law against any who would try to overturn it in the courts,' " the department said in a statement. "We will continue to defend the law to protect innocent new life."