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Policy Communiqué

Partial-Birth Abortion Ban Rejected By U.S. Courts Again –
A Sign of Trouble in the Judicial Branch of the U.S. Government



Recent Court Cases on the Partial-Birth Abortion Ban
Intact D&X (Partial-Birth Abortion) Unnecessary
Late-Term Abortion Ruling Is Unconstitutional
Diagrams of Partial Birth Abortion


Recent Court Cases on the Partial-Birth Abortion Ban

The ban on partial-birth abortion has been hotly contested in American courts in the last few years.

Since it did not include a health exception for the woman, United States (US) District Judge Richard Kopf of Lincoln ruled the Partial-Birth Abortion Act unconstitutional in Carhart v. Ashcroft on September 8, 2004.  (1) Following similar decisions earlier in two cases was the ruling by Judge Kopf.  The Supreme Court is expected to hear an appeal to the rulings in the future.

On behalf of abortion provider Dr. LeRoy Carhart and three other physicians the Nebraska lawsuit was filed by the New York-based Center for Reproductive Rights.  An earlier challenge was brought by Dr. Carhart that eventually led the US Supreme Court to overturn in 2000 a similar abortion ban that was adopted by Nebraska lawmakers.  The federal law is vague and could be interpreted as covering more common, less controversial procedures, including dilation and evacuation (D&E) said Dr. Carhart and his attorney. The most common method of second-trimester abortion is the D&E.

In National Abortion Federation v. Ashcroft , since it did not exempt cases where the procedure might be necessary to protect a woman's health a Manhattan, New York federal Judge Richard Conway Casey ruled on August 26, 2004, that a federal law banning a late-term abortion method was unconstitutional.  (2)  

In a challenge brought by the National Abortion Federation and seven physicians to a November 2003 law that bans the method commonly called partial-birth abortion the ruling, by Judge Richard Conway Casey, came.

In a decision four years ago, the Supreme Court required that any law limiting abortion must have a clause permitting physicians to use a banned procedure if they determine that the risk to a woman's health would be greater without it.  This statement was significant to Judge Casey's decision.

In a New York case, which was argued by attorneys from the American Civil Liberties Union (ACLU), a federal judge in California ruled the law unconstitutional.  On June 1, 2004, the Partial-Birth Abortion Ban Act of 2003 was declared unconstitutional in Planned Parenthood Federation of America (PPFA) v. Ashcroft by US District Judge Phyllis Hamilton in San Francisco, California.   The ban was declared unconstitutional since it unduly burdens a women's right to choose a second-trimester abortion.  It is overtly vague and does not contain an exception to allow partial-birth abortion when the physician determines it is required to preserve the woman's health concluded Judge Hamilton.  (3)  Also, the ban's wording could be interpreted to apply throughout any trimester of pregnancy and could ban another (more common) type of abortion in which the fetus is dismembered in utero and removed vaginally said Judge Hamilton.   As a result of Judge Hamilton's (appointed in 2000 by President Clinton) ruling, the ban could not be enforced against Planned Parenthood clinics nationwide or against any physician to whom Planned Parenthood made referrals.  For other abortion physicians including independent abortion facilities in San Francisco, California or elsewhere that are not associated with Planned Parenthood and do not take referrals from the group, the ban would continue to be enforced.  Despite his ruling, Judge Casey wrote that partial-birth abortion is “gruesome, brutal, barbaric and uncivilized,” after listening to physicians describe the procedure in detail during 16 days of hearings this spring.  Medical experts' testimony stated that the procedure subjects the fetus to “severe pain,” cited Judge Casey.

Also, by saying that he did not believe that many of their “purported reasons for why intact D&X is medically necessary are credible; rather they are theoretical or false,” the Judge dismissed much of the testimony by the ACLU witnesses.

However, Judge Casey placed even greater criticism on Congress saying that it had voted for the law without seriously examining the medical issue.  The judge wrote, “This court heard more evidence during its trial than Congress heard over the span of eight years.” (4) In writing the law, Congress had ignored furious dissension among physicians over the safety and necessity of the disputed abortion found Judge Casey.  He said, in their own hearings, the lawmakers had overlooked testimony and based the bill on the conclusion that partial-birth abortion was never necessary. If there is a risk to a woman's life, the law includes an exception.  However, if a physician decides that there is a risk to a patient's health but not a broader exception, a felony punishable with up to two years in jail and fines up to $25,000 results from a violation.

Intact D&X (Partial-Birth Abortion) Unnecessary

The procedure medically known as “intact dilation and extraction,” or D&X is commonly referred to as partial-birth abortion.  It was banned in November when President Bush signed into law the Partial-Birth Abortion Ban Act of 2003.  President Clinton vetoed several efforts by Congress to enact a partial-birth abortion ban.  In 1995, during a Congressional debate on a bill banning intact D&X, the procedure came to the forefront of public awareness.

To evaluate or attest to its safety there exists no credible studies on intact D&X. (5)  In fact, serious medical risks to the mother are posed by the intact D&X.  Yet in the editorial page of the New York Times, the Times wrote that it considers the ban on partial birth abortion or infanticide as an assault on women's health and privacy.  (6)  At risk are patients who undergo an intact D & X.  The potential danger associated with any surgical mid-trimester termination, include hemorrhage, infection, and uterine perforation.  These patients, however, are placed at increased risk of two additional complications by intact D&X.  First, The risk of uterine rupture may be increased.  An internal podalic inversion is an integral part of the D&X procedure, during which the physician instrumentally reaches into the uterus, grasps the fetus' feet, and pulls the feet down into the cervix thus converting the lie to a footling breech.  Risk of uterine rupture, abruption, amniotic fluid embolus, and trauma to the uterus are carried with the internal version.  “There are very few if any, indications for internal podalic version other than for delivery of a second twin,” indicates Williams Obstertrics. (7)

Second, the risk of iatrogenic laceration and secondary hemorrhage is a potential complication of intact D&X. (8)  Scissors are forced into the base of the fetal skull while it is lodged in the birth canal following internal version and partial breech extraction.  Maternal injury from laceration of the uterus or cervix by the scissors could result in severe bleeding and the threat of shock or even mortal death due to this blind procedure. 

Furthermore, since other procedures are available to physicians who deem it necessary to perform an abortion late in pregnancy, many of these risks are medically unnecessary.  Intact D&X is never the only procedure available according to the clearly stated policy of the American College of Obstetricians and Gynecologists (ACOG).  Furthermore, there does not appear to be any identified situation in which intact D&X is the only appropriate procedure to induce abortion.  In fact, ethical concerns have been raised about intact D&X, indicates the scientific literature. (9)

When hydrocephalus is present some clinicians have considered intact D&X necessary.  However, by first draining the excess fluid from the fetal skull through ultrasound guided cephalocentesis, a hydrocephalic fetus could be terminated.

Early in the second trimester the centers necessary for pain perception develop.  On periviable fetuses the majority of intact D&X procedure are performed.  Pain management is an important part of the care rendered to them in the intensive care nursery when infants of similar gestational ages are delivered.  Pain management however, is not provided for the fetus, who is literally within inches of being delivered with intact D&X.   Certainly excruciatingly painful is the forcible incising of the cranium with scissors and then suctioning out the intracranial contents.  Federal standards for the humane care of animals used in medical research would not be met for pain management practiced for intact D&X on a human fetus.  Thus, as a means of pregnancy termination, the needlessly inhumane treatment of periviable fetuses argues against intact D&X.

Late-Term Abortion Ruling Is Unconstitutional

Judge Casey's rationale for ruling that the Partial-Birth abortion ban is unconstitutional is unwarranted and illogical. In the Supreme Court's 2000 Decision in Stenberg v. Carhart, the plaintiffs were able to produce some physicians (supported by some medical associations) willing to testify that intact D&X abortions had some safety advantages…over Dilation and Evacuation (D&E) abortions for some women in some circumstances.  However, the testimony presented by the abortionists at the trial was hypothetical and unsubstantiated by scientific evidence.  Unfortunately, Judge Casey stated that he was constitutionally compelled by the Supreme Court to accept it. (10) The judge said, you ask why? He responded that “The Supreme Court has held that when there is…a division of medical opinion” regarding the relatively safety of an abortion method when compared to other available methods,” a health exception is constitutionally required.”  When “a significant body of medical opinion…believes a procedure may bring with it greater safety for some patients,” a procedure is “medically necessary,” concludes Judge Casey.  He notes, the Supreme Court's constitutional standard, “is so easy for physicians to satisfy, and so difficult for the Government to overcome.”

Tragically, physicians such as abortionists' have politicized their medical decisions instead of basing them on medically sound-science.  As a result even though there is not a division of medical opinion regarding the relatively safety of intact D&X abortions when compared to other available methods, attorneys can find a physician that will say the contrary.  For example, there does not appear to be any identified situation in which intact D&X is the only appropriate procedure to induce abortion, indicates the scientific literature.  In fact, it is a needlessly risky, inhumane, and ethically unacceptable medical abortion procedure that should not be performed. Tragically, the procedure is simply infanticide.  

To amass the power it currently possesses, the Court has worked diligently.  Returning the judicial branch to its proper position which is the least of three co-sovereign branches America must reclaim from the courts the right of this nation to be a republic.  The destiny of this nation must not be controlled by the courts but the people of this nation.  Socially-engineering judges must not guide any national reforms but it must be done by the people.  The Founders quickly rose up and dramatically forced the Court back to its proper constitutional function whenever the court took the place of the nation and exercised as absolute a sway over society.  (11)

Even if a law has been legitimately enacted by the people through their elected representatives, a mere five Supreme Court Justices can currently overturn any law of the land.  Wrongly, the most powerful ruling body in America has become the Supreme Court comprised of unelected officials that are not answerable to the people. 

The minority belief has become the “majority” view and wrongly so the law of the land in many areas, with the willing assistance of the Court.  For example, in January 2003, a USA TODAY/CNN/Gallup Poll showed that 70% of Americans supported a ban on partial-birth abortion prior to the Senate passing legislation to ban the abortion procedure. (12)  In a July ABCNEWS poll indicated 62 percent of those polled favored banning this form of late-term abortion. (13 )Yet the Court usurped sound medical science and aligned itself with the minority and opposed the ban on partial-birth abortion.  

In January 2003, a USATODAY/CNN/Gallup Poll showed that 70% of Americans supported a ban onpartial-birth abortion prior to the Senate passing legislation to ban theabortion procedure. In a JulyABCNEWS pollindicated62 percent of those polled favoredbanning this form of late-term abortion.

Phrases such as “government of the people, by the people,” and “the consent of the governed,” are used in the Declaration of Independence and the Constitution.  The fact that the Founders intended that the power of the American government to reside solely in the hands of the people is incontrovertible.  Accountable to the people and possessing superior resources with which to determine and provide for the welfare of the people are the representatives that are selected by the people and act in place of the people for the people's welfare.  The judicial branch has created around it an atmosphere in which it is all too easy for the judiciary to substitute its own idea of the general welfare for that of the people because of its unaccountability and aloofness.  Compared to those of the national legislature, the resources available to the judiciary for determining the general welfare are in no way superior.

The desires of a small groups such as the Court or the desires of a few individuals are not to be reflected in our laws but should be the general public consensus.  The basic tenet of a republic were summarized by Samuel Adams when he declared : (14)

“Laws they are not, which the public approbation hath not made so.”  This seems to be the language of nature and common sense; for if the public are bound to yield obedience to laws to which they cannot give their approbation, they are slaves to those who make such laws and enforce them.”

Under the Constitutional plan, the courts would not be given the power to strike down laws according to Alexander Hamilton, writing in Federalist 81 of The Federalist Papers: (15)

In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution.

The spirit of the Constitutional laws were to be judged by Congress not the courts.  On the intent of the Constitution, Congress was to build its laws on and according to the intent of Congress.  The courts were to interpret the laws.

Today, at will to reflect their own predispositions, courts amend and modify the meaning of the Constitution.  Problematic as well as wrong, is that the philosophical predilections of the Justices become, in effect, part of the Constitution when the Supreme Court's interpretation of the Constitution is considered final and binding upon all other authorities.   The Constitution means whatever five members of the Supreme Court decide it should mean if the Court is allowed to act somewhat in a continuous constitutional convention, continually amending the written document by interpretation.  As a result the constitutional checks and balances have been seriously distorted as this nation daily becomes less and less a republic and more an oligarchy that is ruled by judicial fiat.  A government of and by judges and attorneys for the people has replaced a government of, by, and for the people.  The framers of the Constitution afforded protection to the unborn as one can see if one examines the Preamble to the Constitution of the United States that says, “We the people of the United States, in order to form a more perfect Union, establishing justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessing of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”   The word “posterity” is defined as succeeding or future generations collectively, according to the Random House Webster's College Dictionary.  Simply to refuse to allow the courts to rule the nation is what can be done to stop judicial supremacy.  Upon the same foundation which it had been built, not on the foundation on which some philosophical minorities want to place it is where the constitutional republic should remain.   To do this America needs to reflect upon its past.  Refusing to allow the Court to be the guide for the nation as did his predecessors was Abraham Lincoln.  He explained the philosophy behind his denial in his first Inaugural Address: (16)

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court….At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made…the people will have ceased to be their own rulers, having…resigned their Government into the hands of that eminent tribunal.

The Supreme Court had declared that Congress could not prohibit slavery and that slaves were only property, not persons eligible to receive any rights of a citizen in the 1857 Dred Scott decision.  However, that decision was disregarded by President Lincoln and in the Emancipation Proclamation declared freedom for the slaves.  And when it prohibited the extension of slavery into the free territories on June 9, 1862 Congress, too rejected the Court's ruling.  Freedom for slaves could have never been declared if President Lincoln allowed the Court's ruling to be binding upon the executive branch and had not been guided by his own understanding of the Constitution.  Today both the President and Congress have relinquished the responsibilities for which they were elected by allowing themselves to be governed by the Court.  Oaths to uphold the Constitution have been taken by the President and Congress: (17)

Congress and the President are vested not only with the power but with the duty to read the Constitution for themselves…They are entitled to consult the opinions of the Court…[But] They are not entitled to abdicate their own official function of independent judgment.

It is time for America to follow the examples set by the great leaders of the past such as President Lincoln if we are to preserve the lives of the unborn as well as our Christian heritage.  Since it was not a republican remedy, judicial supremacy was never intended as well as it is unconstitutional.  Often acting unconstitutionally are justices that say they are acting in the name of the Constitution - it is a bitter irony.  It is time to return to the meaning of the Constitution that was intended by the Framers for the members of Congress and the Executive branch so that the erosion of this once great republic can be stopped.

Diagrams of Partial Birth Abortion

Guided by ultrasound, the abortionist grabs the baby's leg with forceps.

  The baby's leg is pulled out into the birth canal.

The abortionist delivers the baby's entire body, except for the head.

The abortionist jams scissors into the baby's skull. The scissors are then opened to enlarge the hole.

The scissors are removed and a suction catheter is inserted.

The child's brains are sucked out, causing the skull to collapse. The dead baby is then removed.

  Diagrams From The National Right to Life Web site.




1.      “Neb.Judge: Abortion Ban Unconstitutional.  Nebraska Federal Judge Finds Partial-Birth Abortion Ban Act Unconstitutional.” The Associated Press. [Retrieved  September 8, 2004].

2.      Preston, Julia .“U.S. Court in New York Rejects Partial-Birth Abortion Ban.” The New York Times. [Retrieved August 27, 2004].

3.      “Neb.Judge: Abortion Ban Unconstitutional.  Nebraska Federal Judge Finds Partial-Birth Abortion Ban Act Unconstitutional.” The Associated Press. [Retrieved  September 8, 2004].

4.      Preston, Julia .“U.S. Court in New York Rejects Partial-Birth Abortion Ban.” The New York Times. [Retrieved August 27, 2004].

5.      Kaufman, Marc. “Ban on Type of Abortion Reversed. ‘Partial Birth' Law Faces Challenges.” The Washington Post.  [Retrieved June 2, 2004].

6.      Preston, Julia .“U.S. Court in New York Rejects Partial-Birth Abortion Ban.” The New York Times, [Retrieved August 27, 2004].

7.      Sprang, M. LeRoy MD; Neerhof, G. ,Mark DO. 1998.  Rational For Banning Abortions Late in Pregnancy. The Journal of the American Medical Association. Vol. 280 pp. 744-747.

8.      “Round One for Women's Health.” The New York Times. [Retrieved September 13, 2004]

9.      Cunningham FG, MacDonald PC, Gant NF, et al. Williams Obstetrics. 20th ed. Stamford, Connecticut : Appleton and Lange. 1997: 507.

10. Sprang, M. LeRoy MD; Neerhof, G. ,Mark DO. 1998.  Rational For Banning Abortions Late in Pregnancy. The Journal of the American Medical Association. Vol. 280 pp. 744-747.

11.  Refer to: H-5.982 Late-Term Pregnancy Termination Techniques, American Medical Association

12. Coffin, W., Shannen. “Take It Up with the Supremes. A Federal judge strikes down the Partial-Birth Abortion Ban Act of 2003.” National Review Online.  [Retrieved August 27, 2004].

13. Barton, David. The Myth of Separation. What is the correct relationship between Church and State? WallBuilder Press. 1992.

14. Kiely, Kathy. “Senate bans ‘partial birth' abortion.” USA TODAY.  [Retrieved October 23, 2003]. 

15. Demos, Telis. “Not Black-and-White. Most Americans Back Health Exception to “Partial-Birth' Abortion Ban.” ABCNEWS.com. [Retrieved July 24, 2004].

16. Barton, David. The Myth of Separation. What is the correct relationship between Church and State? WallBuilder Press. 1992.

17. Ibid.

18. Ibid.

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