The Status of the Partial Birth Abortion Act of 2003

Bob Taylor

The Partial Birth Abortion Act was signed into law by President Bush in November 2003. It was immediately challenged in United States District Courts in California, Nebraska, and New York by various pro-abortion individuals and organizations. All of the District Courts issued preliminary injunctions banning the enforcement of the law on the grounds that the law was similar in language to a Nebraska statute struck down by the United States Supreme Court in Stenberg v. Carhart, 530 U.S. 914 (2000).

A little background. In Stenberg, the Nebraska law provided that: “No partial birth abortion shall be performed in this state, unless such procedure is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused or arising from the pregnancy itself.”

Partial birth abortion was defined as: “an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery.” “Partially delivers vaginally, etc.” was defined as: “deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child.” The Supreme Court, in a 6-3 decision, found the Nebraska law to be unconstitutional. The majority opinion began by saying that the evidence before the trial court showed that approximately 10% of all abortions are performed during the second trimester of pregnancy, and that the most commonly used procedure is called “dilation and evacuation” (D&E).

According to the testimony of the plaintiff, Dr. Carhart, this procedure often results in “disarticulation”, i.e., the dismemberment of the fetus that occurs when a part of the fetus is grabbed by an instrument and pulled through the cervix and into the birth canal.

“Disarticulated” pieces of the fetus are removed one by one until the entire body of the fetus is removed. A second procedure called “dilation and extraction” (D&X) or “intact D&E”, is described by the Court thusly: “If the fetus presents head first (a vertex presentation), the doctor collapses the skull; and the doctor then extracts the entire fetus through the cervix. If the fetus presents feet first (a breech presentation) the doctor pulls the fetal body through the cervix, collapses the skull, and extracts the fetus through the cervix.” The fetal skull is collapsed by driving a pair of scissors into the base of the skull, separating the blades to enlarge the opening, and then evacuating the brain using a vacuum device. It is the second procedure that is known as “partial birth abortion” and against which the law was directed.

The Supreme Court concluded that the Nebraska law violated the Federal Constitution, as interpreted in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), for two independent reasons: first, it lacked any exception for the preservation of the health of the mother, and second, it imposed an undue burden on a woman’s ability to choose a D&E abortion, thereby unduly burdening the right to choose abortion itself.

The Partial Birth Abortion Act of 2003 is somewhat different from the Nebraska law. It provides in pertinent part that:

(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. This subsection takes effect 1 day after the enactment.
(b) As used in this section—(1) the term “partial-birth abortion” means an abortion in which the person performing the abortion—

(A) deliberately and intentionally vaginally delivers a living fetus until, 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, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and
(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus…

As support for the Act, Congress made a number of factual findings. Among them were findings that a partial-birth abortion is never necessary to preserve the health of a woman, poses significant health risks to a woman, and is outside the standard of medical care. As a consequence, the Congress also found that a ban on partial-birth abortion is not required to contain a “health” exception.

Each case challenging the Federal Act has gone to trial. The only decision has thus far been rendered was in the case pending in the District Court for the Northern District of California, Planned Parenthood Federation of America v. Ashcroft, No. C 03-4872 PJH. In that case, Judge Phyllis J.Hamilton, a Clinton appointee, found the Partial Birth Abortion Act to be unconstitutional on various grounds.

First, the judge found that the Act imposed an undue burden on a woman’s ability to choose a D&E (dilation and evacuation) abortion as compared with a D&X (dilation and extraction) or intact D&E procedure—the partial birth abortion against which the law was directed— because it might be possible that during a D&E procedure that the acts prohibited by the Act might occur.

Second, the judge found that the Act was unconstitutionally vague because of trial testimony of numerous physicians that they did not understand various terms of the Act, including “partial-birth abortion,” “overt act,” “deliberately and intentionally,” and “living fetus.”All of these physicians were active practitioners of abortion— they appear to make their living performing them—that the Court allowed to testify as expert witnesses. (In contrast, the government’s witnesses were not experts because they had never performed an intact D&E abortion.)

Third, the judge found that the Act was unconstitutional because it did not contain a health exception in that it excepted only a “partial-birth abortion that is necessary to save the life of a mother.” The judge found on the basis of the testimony of her favored experts that there were instances that the D&X procedure was as safe as, or safer, that the D&E procedure.

Finally, the judge trashed the findings of fact made by Congress to support the Act, saying that: “this court finds that Congress’ conclusion that the procedure is never medically necessary is not reasonable and is not based on substantial evidence” was “based in part on the testimony of witnesses that tend to disfavor elective abortion generally.” She did not comment on the obvious— the experts on which she relied not only favored abortion on demand, but made their living at it. The judge also noted that the Congressional finding that the fetus suffers pain during the course of a D&X was irrelevant. Although the judge said that a nationwide injunction against the Act may be appropriate, she said that in deference to the New York and Nebraska courts that were also considering the issue, she would only issue a permanent injunction against enforcement of the Act against the plaintiffs.

According to notes taken by Jay Sekulow of the ACLJ (accessible at prolife/pba/040329-trial-notebook.asp) the trial in the New York case, National Abortion Federation v. Ashcroft, is over, briefs have been filed, and closing arguments were scheduled for June 22, 2004. The trial judge appeared to take a deep interest in the issues involved, did not seem to be so cavalier about fetal pain, and put a number of penetrating questions to the plaintiffs’witnesses. Mr. Sekulow calls attention to one interesting statistic relied on by Congress (but did not get a mention in the San Francisco case) that seems to bear on the health exception issue. Kansas is the only state that requires separate reporting for partialbirth abortions. In 1999, 182 partial birth abortions were reported, all of which were performed on viable fetuses. All of the 182 abortions were reported to have been performed for mental health reasons—not one was performed for physical health reasons of the mother.

It is expected that decisions will be rendered in the New York and Nebraska cases within the next month or two. The government has announced that it intends to appeal the decision of the San Francisco District Court. No matter how the other two cases turn out, it can be expected that one side or the other will appeal the results. Thus, three different Courts of Appeal will most likely have to address the issue. If there is a difference of opinion, the matter will probably end up in the Supreme Court.

[Bob Taylor, an attorney in Newport Beach, joined the Board of Directors of Life Legal Defense Foundation in 2003. The text of the PBA act is available at numerous places on the web, one of which is