Signing of Partial-Birth Abortion Ban Escalates Legal Fight

By Robert B. Bluey | July 7, 2008 | 8:04 PM EDT

( - Less than an hour after President Bush signed a law banning partial-birth abortions, a federal judge in Nebraska issued a temporary restraining order Wednesday, preventing it from being enforced against four abortionists.

Pro-life advocates had spent eight years lobbying for a federal ban on partial-birth abortion, but the ink was barely dry from the president's signature when U.S. District Judge Richard G. Kopf partially blocked the law. His ruling handed abortion-rights advocates a victory in one of the three lawsuits they filed Friday.

Kopf raised concerns about the lack of a health exception protecting pregnant women. The Center for Reproductive Rights had brought the lawsuit on behalf of the four abortionists.

Kopf, an appointee of Bush's father, the nation's 41st president, was also the judge who ruled in favor of Dr. LeRoy Carhart in a partial-birth abortion case that eventually reached the U.S. Supreme Court. The court struck down Nebraska's law in 2000. Carhart is now a plaintiff in the challenge to the federal ban.

Even though the Partial-Birth Abortion Ban Act doesn't contain a health exception, it does allow the procedure to be performed if a woman's life is at risk. Kopf said that didn't go far enough.

"While it is also true that Congress found that a health exception is not needed, it is, at the very least, problematic whether I should defer to such a conclusion when the Supreme Court has found otherwise," Kopf said, according to The Associated Press.

Supporters of the ban lashed out at Kopf's ruling.

"Partly born, premature infants will die tomorrow at the point of seven-inch scissors, because of a federal judge's order," said Douglas Johnson, legislative director for the National Right to Life Committee.

The law defines partial-birth abortion as "in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother."

The bill's sponsor, Sen. Rick Santorum (R-Pa.), said a health exception wasn't included because courts had broadly defined it to include any medical reason. He added that Congress found no evidence that the procedure was ever needed to protect a woman's health.

Santorum, who joined Bush onstage for the bill signing, told reporters Wednesday that he was confident the law would stand up to legal challenges. Besides the case in Lincoln, Neb., two other lawsuits were filed in New York City and San Francisco. The American Civil Liberties Union and the Planned Parenthood Federation of America are leading those efforts.

"We need to get this issue out of the courts," Santorum said. "The abortion issue should not be in the courts. It should be in the court of public opinion. It should be a decision of the collective morality of the people. This should not be a decision that nine people [on the Supreme Court] make for us."

Despite Santorum's wishes, abortion-rights advocates vowed to carry out a vigorous legal fight. Kopf's decision was likely the first of many that could drag on for several years. Both sides of the abortion debate eventually expect the Supreme Court to determine the law's constitutionality.

Because the court addressed partial-birth abortion only three years ago, holding 5-4 that Nebraska's ban was unconstitutional, pro-life advocates have made it no secret that they will either need a new justice who opposes abortion or a sitting justice to switch sides.

"We can only hope that by the time this law reaches the Supreme Court, there will be at least a one-vote shift away from that extreme and inhumane position," Johnson said.

That prospect worries abortion-rights advocate Kim Gandy, president of the National Organization for Women. She said with one appointment to the Supreme Court, Bush could easily make Roe v. Wade, the 1973 ruling that legalized abortion, a memory.

"Right now, the Supreme Court narrowly supports a woman's right to make her own reproductive decisions," Gandy said. "By the time the challenge to this law reaches the Supreme Court, we could have one or two new justices who do not believe in a woman's constitutional right to abortion."

Before signing the ban, Bush vowed to "vigorously defend this law against any who would try to overturn it in the courts."

Not all pro-life advocates were optimistic about the law's potential to reduce abortions. Randall Terry, founder of Operation Rescue, called the law a "public relations goldmine." He said it might not even save one child's life because it was likely to be struck down.

But that hasn't stopped other pro-life advocates like Jay Sekulow, chief counsel of the American Center for Law and Justice, from vowing to defend it.

"There has been great care taken to ensure that the language of the law meets the concerns expressed by the U.S. Supreme Court when it considered the Nebraska case," he said. "The law is constitutionally sound and we're hopeful it will survive the legal challenges, which are already under way."

See Earlier Story:
Bush Signs Partial-Birth Abortion Ban Into Law
(Nov. 5, 2003)

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