9th and 2nd Circuits strike down partial-birth abortion ban

By: DAN GOODIN - Associated Press | Tuesday, January 31, 2006 5:07 PM PST ∞

SAN FRANCISCO -- Two federal appeals courts on opposite sides of the country declared a ban on so-called partial-birth abortions unconstitutional Tuesday, saying the measure lacks an exception for cases in which a woman's health is at stake.

The first ruling came from a three-judge panel of the 9th U.S. Circuit Court of Appeals here. The decision, which found the law unconstitutional on three separate grounds, applies in California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska and Hawaii, plus Guam and the Northern Mariana Islands.

Hours later, a three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan issued a similar decision. It affirmed a 2004 ruling by a judge who upheld the right to perform the late-term abortion even as he described the procedure as "gruesome, brutal, barbaric and uncivilized."

The law banned a procedure known to doctors as intact dilation and extraction and called partial-birth abortion by abortion foes. The fetus is partially removed from the womb, and the skull is punctured or crushed.

Signed by President Bush, the abortion ban carried a two-year prison term but was never enforced because of legal challenges in California, New York and Nebraska.

A third appeals court, the 8th U.S. Circuit Court of Appeals, had already struck down the law on constitutional grounds. That decision was appealed to the U.S. Supreme Court, which has yet to indicate whether it will take the case. Tuesday's decisions also were expected to be appealed to the high court.

"We now have three federal appeals courts that have invalidated the federal partial birth abortion law," said Carl Tobias, a law professor at the University of Richmond in Virginia. "Most people predicted this, but it wasn't a foregone conclusion."

In striking down the law Tuesday, a unanimous three-judge panel of the 9th Circuit said the law was so vague and broad that no other remedy was possible.

"We are reluctant to invalidate an entire statute," Circuit Judge Stephen Reinhardt wrote for the panel. "However, after considering all of the obstacles to our devising a narrower remedy, we conclude that such is our obligation."

The judges disagreed with the law's supporters, who argued the ban covered only procedures in which a fetus was "disarticulated," or cut up, after it was removed from a woman. The appeals court upheld a lower court that ruled the law also could be applied to outlaw a more common pregnancy-terminating procedure in which a fetus is dismembered before it is removed.

The panel also rejected arguments made by Justice Department attorneys that there was general agreement among doctors that the late-term abortions were never necessary to preserve the health of a woman.

"The government all but admits in its reply brief that no medical consensus exists regarding the need for the prohibited procedures to preserve the health of women in certain circumstances," the panel concluded.

Attorneys for the Planned Parenthood Foundation, which brought the suit heard by the 9th Circuit, praised the ruling.

"Even though the supporters of this law purported to be banning one particular abortion procedure, the law as the court found would in fact chill doctors from performing virtually any second trimester abortion," said Eve Gartner, senior staff attorney for Planned Parenthood and lead counsel in the 9th Circuit case.

Justice Department officials did not return a telephone call seeking comment. In the past, the department argued that partial birth abortions were inhumane and caused pain to the fetus. A government lawyer said the procedure "blurs the line of abortion and infanticide."

The 9th Circuit case was brought by Planned Parenthood on Nov. 5, 2003, the same day President Bush signed the act into law. A district court granted a temporary injunction against the law's enforcement the following day.

The ban, which President Clinton twice vetoed, was seen by abortion rights activists as a fundamental departure from the Supreme Court's 1973 precedent in Roe v. Wade.

The case is Planned Parenthood Federation of America v. Gonzales, 04-16621.