Legal Battle Tempers Joy Over Partial-Birth Abortion Ban

By CNS and STAFF REPORTS

Published: November 13, 2003

WASHINGTON (CNS)—Pro-lifers were cheering Nov. 5 when President Bush signed the Partial-Birth Abortion Ban Act into law but were also left wondering when the law would actually go into effect.

Multiple court challenges claiming the law is unconstitutional were filed within moments of the president signing the bill, and three injunctions were issued to block enactment of the law.

At the signing ceremony, Bush said, “The facts about partial-birth abortion are troubling and tragic, and no lawyer’s brief can make them seem otherwise. By acting to prevent this practice, the elected branches of our government have affirmed a basic standard of humanity, the duty of the strong to protect the weak.”

The president said a partial-birth abortion “involves the partial delivery of a live boy or girl, and a sudden, violent end to that life.”

“Our nation owes its children a different and better welcome,” he added.

Archbishop Charles J. Chaput of Denver, chairman of the U.S. bishops’ Committee on Pro-Life Activities, said the signing marked “the first time in three decades that our nation has placed any restriction on an abortion procedure.” He called it “a vital step in the right direction for our nation.”

“We commend the president for his action, and we pledge our prayers and support to see that this brutal procedure remains prohibited by law and intolerable to the American people,” the archbishop added in a Nov. 5 statement.

The new law defines partial-birth abortion as the partial delivery of a fetus from the womb “for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus” and then performing that act, killing the partially delivered fetus instead of delivering it alive. Doctors who violate the ban could face a fine and up to two years in prison.

The legislation allows an exception to save the life of the mother but does not include an exception for the mother’s health.

“It is extremely historic, ” said Mary Boyert, director of the Archdiocese of Atlanta Pro-Life Office. “It is the first and only law (restricting abortion) passed by both houses of Congress and signed by the president since Roe vs. Wade and Doe vs. Bolton,” the cases that legalized abortion on demand in the United States 30 years ago.

“It shows great strides. It also shows what a long way we have to go,” Boyert said, because the partial-birth abortion ban, which required an eight-year battle, immediately faced court challenges and is expected to proceed now through the courts to the U.S. Supreme Court.

Public awareness of the abortion procedure began more than 10 years ago in 1992, she said, when an abortionist described it.

Congress has been trying to pass a ban on partial-birth abortion since 1995. Twice legislation was passed by both the U.S. Senate and House of Representatives and vetoed by President Clinton and only the House was able to muster the votes to override his veto. A number of states, including Georgia, have passed bans on partial-birth abortion, but they have been weakened or blocked in court challenges.

A Nebraska case went to the U.S. Supreme Court, where the court voted 5-4 in 2000 to uphold the right of abortionists to use the procedure.

It is hoped the 2003 partial-birth abortion ban will have sufficient documentation to show the courts that the procedure is never medically necessary.

Boyert finds the intensity of the fight put up by pro-abortion lobbyists against the partial-birth abortion procedure revealing.

“The fight the other side is putting up to maintain the right to have this procedure is very telling,” Boyert said. “It really does reveal their true intention—abortion on demand, through all nine months, for any reason, for all reasons.”

“If you want to call somebody ‘extreme’ or ‘radical,’ this is pretty radical,” Boyert said. “They want to protect a form of abortion that is really like torture.”

Even as the president signed the legislation, U.S. District Judge Richard Kopf was hearing arguments in Lincoln, Neb., on whether he should block implementation of the law.

As the hearing began, Kopf, an appointee of President Reagan, said the law had “serious vagueness problems” and expressed concern that there was no exception for a mother’s health.

“It seems to me that the law is highly suspect, if not a per se violation of the Constitution,” he said.

Kopf issued a temporary but indefinite injunction against the law’s implementation but he limited the scope of the injunction to Dr. LeRoy Carhart of Bellevue, Neb., and three other abortion providers who had filed the suit.

It was Carhart’s fight against a statewide Nebraska law banning partial-birth abortions that led to the U.S. Supreme Court overturning the law in 2000.

On Nov. 6 a federal judge in San Francisco blocked the law. The ruling affects doctors at 900 clinics across the country run by Planned Parenthood.

The same day a federal judge in Manhattan also blocked the ban, granting a temporary restraining order to a network of abortion providers, the National Abortion Federation, which filed a lawsuit challenging the ban’s constitutionality.

Among the Catholic leaders attending the Nov. 5 signing ceremony at the Ronald Reagan Building in Washington were Cardinal Edward M. Egan of New York, Carl A. Anderson, supreme knight of the Knights of Columbus, and Gail Quinn and Richard Doerflinger, director and deputy director of the bishops’ Secretariat for Pro-Life Activities.

In advertisements Nov. 5 in USA Today and in a Capitol Hill political newspaper called Roll Call, the U.S. bishops’ Committee for Pro-Life Activities and the Knights of Columbus congratulated Bush “and members of Congress on both sides of the aisle” for bringing the United States “one step closer to a culture of life.” The ad was signed, “With gratitude, millions of Catholics across the United States.”

A similar ad thanking Catholics for their efforts in supporting the partial-birth abortion ban was to appear in the Nov. 16 issue of the National Catholic Register and the Nov. 23 issue of Our Sunday Visitor, both of which have nationwide circulation.

Even while acknowledging that the new law faced court challenges, the ad said: “After eight years, you’ve made history. This marks the first federal restriction of an abortion procedure in 30 years.”

In separate statements issued Nov. 5, numerous Catholic and other leaders praised the signing of the ban by the president.

“Since this horrifying procedure became public almost a decade ago, the American people have shown a firm and unwavering resolve to ban it. That resolve has brought us to this historic day,” said the Knights’ Anderson.

“I welcome this law,” said Cardinal Francis E. George of Chicago. “Children shouldn’t be killed while being born.”

Cardinal Justin F. Rigali of Philadelphia called the signing of the bill “a victory for women, for unborn children and indeed for all Americans who embrace a culture of life.” He asked for “Catholics and others who value the sacredness of all human life to continue to work on behalf of women and their unborn children and to pray for the day when no abortions take place in this country.”

Father Michael Place, president and CEO of the Catholic Health Association, said, “We are grateful that our nation’s leaders agree that partial-birth abortion is an abhorrent practice that has no place in a society which believes in compassion and dignity for all.”

He added, “We hope and pray that the courts see the partial-birth abortion procedure for what it is, the killing of children who are in the process of being born.”

National Council of Catholic Women president Maggie Gray said that “by passing this bill, the U.S. Congress has moved beyond politics so that American law and medical practice can work together to protect rather than endanger partially born babies.”

National Right to Life Committee legislative director Douglas Johnson noted the 2000 Supreme Court decision handed down on the Nebraska law and the court fight ahead on the new ban.

“This law will ultimately be reviewed by the Supreme Court, where five justices in 2000 said Roe vs. Wade guarantees the right to perform partial-birth abortions at will,” he said. “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.”

“The lengthy and ardent opposition to this ban shows who the extremists really are and how far they will go to defend the undermining principle that imposed,” said a statement from the Iowa-based Lutherans for Life.

Those who fought to accomplish this victory should “be proud,” Boyert said. “Their work had good results. It has to go on.”

She urged more prayer and more introspection on the part of all Catholics to consider what they might be called to do to become more pro-life.

“I think praying is something all of us should be doing. We should look inside ourselves and do what we are called to do, whether it is praying, contributing money, going to an abortion clinic, speaking at schools,” she said. “I think there is a sense the country is becoming more aware and more sensitive to this issue. Some polls are showing young people are becoming more pro-life. People are more pro-life in their hearts than they realized.”