WASHINGTON (Dec. 5) - - A widely publicized November 18 ruling by
the U.S. Court of Appeals for the Sixth Circuit, striking down an Ohio law
placing restrictions on so-called "dilation and extraction" abortions,
dealt with a statute very different from the laws restricting partial-birth
abortions that have been enacted by numerous states.
By a 2-to-1 vote, a panel of the appeals court struck down a provision of
Ohio's 1995 law restricting what it calls "dilation and extraction"
abortions. "Dilation and extraction" is a term coined by Ohio
abortionist Dr. Martin Haskell for an abortion method in which he removes
a baby's brain while the baby is still partly within the womb, before delivering
the intact cadaver.
The Ohio law defines a "dilation and extraction" abortion as "the
termination of a human pregnancy by purposely inserting a suction device
into the skull of a fetus to remove the brain.... [The term] does not include
either the suction curettage procedure of abortion or the suction aspiration
procedure of abortion."
Dr. Haskell challenged the law, and in late 1995 he won a judgment from
a federal district court that the definition was ambiguous and could be
interpreted to ban not only the procedure that Haskell uses, which involves
the removal of the baby's body mostly intact, but also "dilation and
evacuation" (D&E) abortion, which is a commonplace method of second-trimester
abortion in which the baby is removed piece by piece from the womb.
The appeals panel agreed that the Ohio definition could be so construed,
and held that such a restriction on the D&E method would constitute
an "undue burden" on the "right" to obtain second-trimester
abortions, thereby violating the U.S. Supreme Court's ruling in Planned
Parenthood of Southeastern Pennsylvania v. Casey (1992).
In its report on the Sixth Circuit ruling, The New York Times [Nov.
19] noted that "there was at least a suggestion in the opinion . .
. that a precisely worded ban on a particular abortion method, even before
fetal viability, might be acceptable if it defined the procedure with more
care and avoided the vagueness problem the appeals court identified in the
Ohio statute."
Not a Partial-Birth Law
"From the national perspective, the most important thing to understand
is that the Ohio law is not a partial-birth abortion law,"
said NRLC Legislative Director Douglas Johnson. "This ruling should
have little effect on court cases in other states which involve genuine
partial-birth abortion laws, or on any legal challenges to the federal Partial-Birth
Abortion Ban Act, if we are able to override President Clinton's veto."
Even the lawyer representing Dr. Haskell, Alphonse Gerhardstein, told the
Associated Press that he doubts that the Supreme Court would agree
to review the case because the Ohio law is too different from other states'
laws to set any meaningful example for the rest of the nation.
The federal Partial-Birth Abortion Ban Act would prohibit"partial-birth
abortion," defined entirely differently from the Ohio law's "dilation
and extraction." The federal bill prohibits "an abortion in which
the person performing the abortion partially vaginally delivers a living
fetus before killing the fetus and completing the delivery."
In its ruling, the Sixth Circuit panel said explicitly, "We express
no opinion on the constitutionality of this definition [the federal bill's
definition of partial-birth abortion] or the federal legislation."
The Ohio law prohibits the "brain suction" process, whether or
not the baby is already dead before the brain removal is conducted, and
whether or not the baby has been partly delivered from the womb. In contrast,
the federal partial-birth abortion ban would apply to all cases in which
the baby is partly delivered alive before being killed, whether or not this
is followed by removal of the brain.
Sixteen states have enacted laws with definitions of partial-birth abortion
that are similar or identical to the federal bill. A number of these laws
have been blocked by lower-court orders, but none has been reviewed by any
federal court of appeals.
These differences between the Ohio law and laws that define partial-birth
abortion are of potentially great legal consequence.
"The Sixth Circuit used - - or misused - - Supreme Court precedents
that apply to laws that attempt to regulate the killing of unborn
babies," explained NRLC's Johnson. "But the federal bill would
specifically ban killing babies who are already partly born, which
poses a substantially different legal question. The partial-birth abortion
method is used mostly to kill babies at 20 to 24 weeks of development -
- 4-1/2 to 5-1/2 months - - who would be legally regarded as live births
if the babies' heads were delivered."
Johnson noted that in its official reports on the Partial-Birth Abortion
Ban Act, the U.S. House Judiciary Committee argued that because the baby
is partly delivered alive, the U.S. Supreme Court's Roe v. Wade and
Planned Parenthood v. Casey rulings simply do not apply to the procedure
of partial-birth abortion, as defined in the federal bill. Numerous law
professors have expressed agreement with this argument.
However, the argument that the government at least has the right to protect
a partly born child is irrelevant to the Ohio law, because the Ohio
law makes no reference to partial birth or to the location of the baby.
Thus, the Sixth Circuit's ruling does not control the outcome of cases involving
laws enacted by other states that restrict partial-birth abortion.
No federal court has yet directly considered the issue of the constitutional
status of partly born human beings.
Besides invalidating the "dilation and extraction" restriction,
the Sixth Circuit panel also struck down another section of the Ohio statute
restricting abortions after "viability," except if "necessary
to prevent the death of the pregnant woman or a serious risk of the substantial
and irreversible impairment of a major bodily function of the pregnant woman."
The restriction becomes effective at the beginning of the mother's 22nd
week of pregnancy, unless the abortionist determines through medical testing
that the baby is not "viable."
By a 2-1 vote, the appeals court said that this restriction was unconstitutional
because it does not contain an exception to allow post-viability abortions
"where a woman is faced with the risk of severe psychological or emotional
injury which may be irreversible."
Judge Cornelia Kennedy and Judge Bailey Brown, both appointed by Democratic
President Jimmy Carter, voted to strike down both the "dilation and
extraction" and post-viability restrictions. In dissent, Judge Danny
Boggs, appointed by Republican President Ronald Reagan, argued that both
the "dilation and extraction" and post-viability restrictions
were constitutional.
Further Information
For further discussion of the procedures that are covered by bills to ban
partial-birth abortion, please see "Call It Partial-Birth Abortion
- - It's the Law" [June 19 NRL News, page 6].
An in-depth legal exposition of the legal status of partly born human
beings, in the form of a friend-of-the-court brief filed by NRLC in defense
of Michigan's partial-birth abortion ban, is available on request from NRLC,
Federal Legislative Office, 419-Seventh Street, Northwest, Suite 500, Washington,
D.C. 20004.