Partial-Birth Abortion Ban Act


Background: This legislation bans a particularly brutal and inhumane abortion method in which the child is removed from the womb feet-first and delivered except for the head. The abortionist thrusts scissors into the base of the child’s skull, inserts a catheter through the opening, and suctions out the child’s brain. This procedure is never medically necessary. Many recognize partial-birth abortion for what it is: infanticide.

The Partial-Birth Abortion Ban Act was previously approved by the 104th and 105th Congresses. The bills were vetoed by President Clinton. Action in the 106th Congress was stalled when the

U.S. Supreme Court issued its Stenberg v. Carhart opinion (6/28/2000), in which it declared Nebraska’s partial-birth abortion ban law unconstitutional.

In 2002, the House repassed the measure. In response to the Court’s Carhart ruling, the bill contained a more precise definition of partial-birth abortion and incorporated Congress’s factual findings that partial-birth abortion is never necessary to preserve the health of a woman.

House: On February 13, 2003, Rep. Steve Chabot (R-OH) introduced the Partial-Birth Abortion Ban Act of 2003 (H.R. 760). H.R. 760 was the same as the revised bill passed by the House in 2002.

Floor: On June 4, 2003, after rejecting opposition amendments, the U.S. House of Representatives approved H.R. 760, 282-yes, 139-no, 13-not voting, 1-vacancy (Roll Call 242). The roll call for the House votes can be found at:

Senate: On February 14, 2003, Sen. Rick Santorum (R-PA) introduced the Partial-Birth Abortion Ban Act of 2003 (S. 3), the companion bill to H.R. 760.

Floor: On March 13, 2003, after three days of debate, the U.S. Senate passed the Partial- Birth Abortion Ban Act (S. 3), 64-yes, 33-no, 3-not voting (Roll Call 51). The Senate rejected four hostile amendments and adopted a nonbinding sense of the Senate motion affirming that the

U.S. Supreme Court’s 1973 Roe v. Wade decision is appropriate and should not be overturned.

Conference Committee: The House and Senate bills were identical except for the Senate-passed nonbinding sense of the Senate motion, which was dropped in conference committee.

On October 2, 2003, the House approved the conference report (S. 3), 281-yes, 142-no, 12-not voting (Roll Call 530). On October 21, 2003, the U.S. Senate also approved the conference report, 64-yes, 34-no (Roll Call 402).

Law: On November 5, 2003, President Bush signed the Partial-Birth Abortion Ban Act into law (Public Law 108-105).

Judicial: Abortion advocates challenged the law in the three different U.S. District Courts. On November 5, 2003, a federal judge in the District of Nebraska issued a temporary restraining order against the law. His order applied to Dr. Leroy Carhart and other doctors who filed suit against the law. On November 6, 2003, federal judges in the Southern District of New York and the Northern District of California issued temporary restraining orders blocking enforcement of the law, effective for the National Abortion Federation and Planned Parenthood, respectively.

Trials began March 29, 2004.

In all three courts the PBA Ban Act was struck down. On June 1, 2004, Judge Phyllis Hamilton in California permanently enjoined enforcement of the Act because it posed an undue burden on a woman’s ability to choose a second trimester abortion, was unconstitutionally vague, and lacked a health exception as set forth by the U.S. Supreme Court in Stenberg v. Carhart. On August 26, 2004, Judge Richard Casey in New York found that partial-birth abortion “is a gruesome, brutal, barbaric, and uncivilized medical procedure,” that partial-birth abortions “subject fetuses to severe pain,” that some reasons put forth for partial-birth abortions “are incoherent” or “merely theoretical.” Nevertheless, he also found a division of medical opinion exists about the need of partial-birth abortion to preserve women’s health. Bound to follow the U.S. Supreme Court’s Stenberg decision, this division of opinion means “the Constitution requires a health exception” and therefore the Act is unconstitutional. On September 8, 2004, Judge Richard Kopf in Nebraska also ruled the Act unconstitutional because it lacked a health exception, though he declined to rule on the Act’s constitutionality “when the fetus is indisputably viable.”

In March, Judge Hamilton ruled against the Justice Department in its petition to obtain the medical records of Planned Parenthood. Sen. Rick Santorum (R-PA), sponsor of the ban in the Senate, said that Hamilton “did not give a fair hearing to all of the evidence” (CQ Today, June 2, 2004).

Responding to the Casey ruling, Cathy Cleaver Ruse, spokesperson for the Bishops’ Secretariat for Pro-Life Activities, stated, “Because of Roe, killing a child in the process of being born is called a constitutional right rather than an act of barbarism.” Ruse criticized the fact that medical institutions refused to produce their records. “The crucial question of medical necessity was never answered in this trial. . . In essence, the abortion doctors said 'just trust us,’ and no hard evidence was considered.” Ruse said that the 'health exception’ created by the Supreme Court was a farce. “It’s the quintessential exception that swallows the rule – so broad that you could drive a truck, or a fully-formed unborn baby, right through it.” Ruse applauded the Justice Department for its defense of the Act.

U.S. Attorney General John Ashcroft appealed the California ruling on August 3, 2004, the New York and Nebraska rulings on September 27 and September 28, respectively. Cathy Cleaver Ruse, spokesperson for the Bishops Secretariat for Pro-Life Activities, commended the Justice Department for appealing the PBA cases. “There is no place in a civilized society for this cruel and inhumane practice.”

For a legislative briefing page on partial-birth abortion, please visit: