Federal Appeals Courts Disagree over Partial-Birth Abortions

By Dave Andrusko

Thanks to two conflicting federal appeals court decisions, a possible Supreme Court showdown over partial-birth abortions looms much more likely.

On October 26, the 7th U.S. Circuit Court of Appeals, housed in Chicago, upheld Wisconsin's and Illinois's bans against partial- birth abortions. Barely a month before, on September 25, the 8th U.S. Circuit Court of Appeals overturned the partial-birth abortion bans of Nebraska, Iowa, and Arkansas. (See NRL News, 10/14/99, page 4).

While the Supreme Court does not always take cases when federal circuit courts clash, it often does.

Wisconsin Right to Life and the National Right to Life Educational Trust Fund filed "friend of the court" briefs in support of the state laws at the district and appeals court levels.

Proponents of the bans were ecstatic. "We are floating," said Barbara Lyons, executive director of Wisconsin Right to Life. Susan Armacost, legislative director for Wisconsin RTL, added, " It's a huge victory for the babies of Wisconsin."

Making his sentiments clear, Gov. Tommy Thompson said, "There's no place for partial-birth abortions in Wisconsin," abortions he described as "gruesome" and "abhorrent." "I'm glad the court upheld our efforts to ban them."

"Well reasoned," said Richard Coleson, an associate in the firm of Bopp, Coleson, and Bostrom, who represented 55 Wisconsin state legislators and Lt. Gov. Scott McCallum.

Added Mary Spaulding Balch, NRLC state legislative director, " Unlike what so often happens, the appeals court deferred to the legislature's intent and applied the normal rules of law to a case involving abortion." And because they did, Balch said, "the normal 'abortion distortion' was absent."

In a partial-birth abortion, an unborn baby is rotated about in her mother's womb and pulled into the birth canal--that is, the child's feet come out first in a manner that resembles a breech birth.

The abortionist then plunges a pair of surgical scissors into the back of the baby's exposed head. A suction tube is inserted in the resulting hole and the baby's brains are vacuumed out. The body of the dead baby is delivered largely intact.

Partial-birth abortion litigation continues to pick up speed. In all, such laws have been enacted in 27 states. There are challenges in the legal pipelines of five other federal circuit courts.

Anticipating that the Supreme Court may wish to address the controversy, NRLC Federal Legislative Director Douglas Johnson observed, "As bad and destructive as Roe v. Wade has been, even the Supreme Court has never said there is a right to deliver an infant and then stab her through the head with surgical scissors."

Rulings Clash

The conflicting decisions stemmed primarily from how the court answered the question of whether the language of the statutes was unconstitutionally "vague." A three-member panel of the 8th Circuit said yes, the full 7th Circuit said no.

Writing for the majority in the 5-4 decision upholding Wiscon- sin's and Illinois's statutes, Judge Frank Easterbrook stated, "We conclude that both laws can be enforced in a constitutional manner."

Opponents insisted that the laws, as written, were so imprecise they could be applied to ban other abortion techniques, such as " D&E" [dilation and evacuation], which have been upheld in prior Supreme Court decisions.

Easterbrook addressed that by saying that the 7th Circuit would instruct federal district judges who would handle cases involving such abortions to issue "precautionary" injunctions to make it clear that the law only applies to partial-birth abortions [referred to in the decision as "D&X" abortions].

These instructions are expected by the end of November.

Easterbrook also concluded that because the laws do not constitute an "undue burden," they do not violate a woman's "right of privacy."

The 7th Circuit's decision was unusually quick - - the case was heard in September - - and heard by the full nine-member court. According to a court spokesman, the full court hears only one or two cases a year.

Wisconsin's law was enacted in 1998 and upheld by U.S. District Judge John Shabaz on June 4, 1999. Illinois's ban on partial- birth abortions, enacted in 1997, was declared unconstitutional by U.S. District court Judge Charles Kocoras on February 12, 1998.

Of the 27 states which have enacted bans on partial-birth abortions, seven have not been challenged and were in effect even before the 7th Circuit's decision. Virginia's law is in effect pending review by the 4th Circuit.

Another four circuit courts of appeal - - the 1st, 3rd, 5th, and 6th - - are currently reviewing partial-birth abortion laws.

State Senator Scott Fitzgerald introduced the measure into the Wisconsin legislature. He told the Milwaukee Journal Sentinel that he was "elated" at the decision.

The law "didn't use medical terms," he told the Journal Sentinel. " The description was very much in layman's terms.

"And one of the judges, Judge Easterbrook, commented on that: 'How can you misinterpret this? You don't have to be an attorney, you don't have to be a judge to understand what this means.' "