Constitutionality of Partial-Birth Abortion Ban Challenged in Federal Courts

By Melanie Arter | July 7, 2008 | 8:04 PM EDT

(1st Add: Includes comments from Louise Melling, director of the American Civil Liberties Union Reproductive Freedom Project.)

( - Federal trials begin this week on the constitutionality of the partial-birth abortion ban, and a law firm defending the ban is confident it will prevail.

The American Center for Law and Justice, which specializes in constitutional law, said the upcoming trials in New York, Nebraska, and San Francisco will serve as an important first step in defending the constitutionality of the ban and bring to an end the "barbaric medical practice."

"It is our hope that the courts will come to the same conclusion that the American people have reached: that there is no medical necessity for a barbaric practice that takes the life of a child moments before birth. It is time to end this gruesome procedure that can only be described as infanticide," said Jay Sekulow, chief counsel of the ACLJ.

Sekulow, who will attend the trial beginning on Monday in New York City, says he is encouraged by the rulings of U.S. District Court Judge Richard Casey, who has ordered the New York Presbyterian Hospital to turn over its records involving partial-birth abortions to the Justice Department.

Casey also ruled that he would permit testimony that the unborn child can feel pain during an abortion.

"It is important to establish in court the horrific nature of partial-birth abortion," said Sekulow. "In the New York case, evidence will be presented to show the violent and painful death that results from a partial-birth abortion but also the fact that there is no medical need for such a procedure."

When President Bush signed the ban into law last year, a number of pro-abortion groups immediately filed lawsuits challenging it in several cities. In the New York case, the American Civil Liberties Union is representing the National Abortion Federation and individual physicians.

Sekulow is supporting the Department of Justice in its defense of the law. The ACLJ plans to file a friend-of-the-court brief in support of the ban.

Meanwhile, the ACLU is confident the ban will be struck down, calling it "a significant threat to reproductive rights."

Louise Melling, director of the ACLU Reproductive Freedom Project, said the ban endangers women because it does not include a health exception.

"The law prohibits abortions as early as 13 weeks in pregnancy, banning a wide range of abortions in the second trimester that doctors say are safe and medically appropriate," she said in a statement.

"Because this law interferes with safe medical practice, leading medical associations, including the American College of Obstetricians and Gynecologists, oppose the federal ban," Melling added.

NAF members provide care for more than half of those women seeking abortions in the U.S. each year, Melling said, and the ACLU plans to establish that the ban "restricts safe, medically appropriate abortions in the second trimester."

"As the medical professionals in this case will testify, the federal abortion ban dangerously interferes with the doctor- patient relationship, preventing doctors from performing abortions in the second trimester that they know are safe and among the best to protect women's health," she said.

The U.S. Supreme Court struck down a similar ban in Nebraska four years ago, Melling points out.

"In that case, the Court blocked the law because it would have prevented doctors from performing procedures used in more than 90 percent of abortions in the second trimester, and because the ban did not include an exception to protect women's health," she said. "The federal ban suffers from the same two fatal flaws."

Melling said the ACLU and NAF are hopeful that the U.S. District Court for the Southern District of New York will strike down the federal ban.

Send a Letter to the Editor about this article.