By Dave Andrusko
September 28 - - The Justice Department has notified federal judges in New York and Nebraska that its lawyers will appeal decisions that overturned the Partial-Birth Abortion Ban Act. The Justice Department already had filed an appeal of the decision by San Francisco federal Judge Phyllis Hamilton that held the law unconstitutional.
Judge Hamilton's June 1 decision specifically prohibited the Justice Department from enforcing the ban, enacted with widespread bipartisan support in Congress, at any of Planned Parenthood's 900 clinics.
In an August 26 decision, U.S. District Judge Richard C. Casey of New York also overturned the law, even though he wrote, "The Court finds that the testimony at trial and before Congress establishes that D&X [partial-birth abortion] is a gruesome, brutal, barbaric, and uncivilized medical procedure . . . [and finds] credible evidence that D&X abortions subject fetuses to severe pain."
In the most recent case, U.S. District Judge Richard Kopf declared the ban unconstitutional on September 8. The appeals are to three different federal courts of appeal.
Generally speaking, the law was struck on the grounds that it did not include a "health" exception, or because the law "poses an undue burden" on a woman's "right" to an abortion.
NRLC Legislative Director Douglas Johnson said the battle had only begun.
"Four years ago, five justices of the Supreme Court said that Roe v. Wade allows abortion providers to perform partial-birth abortions whenever they see fit, even on healthy women with healthy babies, if the providers claim some 'health' benefit," he said. "Future appointments to the Supreme Court will determine whether partial-birth abortion remains legal. President Bush is determined to ban partial-birth abortion, but John Kerry has vowed that he will appoint to the Supreme Court only justices who share his views on abortion." John Kerry voted against the Partial-Birth Abortion Ban Act six times.
Most observers believe the United States Supreme Court will eventually rule on the law's constitutionality.
Pro-abortion President Bill Clinton twice vetoed bills to ban partial-birth abortions. By contrast pro-life President George W. Bush actively encouraged lawmakers to send him such a bill, which he signed into law last November.
On May 20, Senator Sam Brownback (R-Ks.) and Congressman Chris Smith (R-NJ) introduced the Unborn Child Pain Awareness Act (S. 2466, H.R. 4420). This bill would require that abortionists provide women seeking any type of abortion past 20 weeks with certain information regarding the capacity of their unborn children to experience pain and regarding the availability of pain-reducing drugs.