Partial-Birth Abortion Ban Act

Background: This legislation would ban 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 approved by the 104th and 105th Congresses, but the measures 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. A revised bill was passed by the 108th Congress. 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 federal courts: the District of Nebraska, Southern District of New York, and the Northern District of California. In all three courts the PBA Ban Act was struck down.

In 2004, U.S. Attorney General John Ashcroft appealed the California ruling on August 3, the New York and Nebraska rulings on September 27 and September 28, respectively.

On April 14, 2005, oral argument was heard in the Nebraska case, and on July 8, 2005, a three-judge panel of the U. S. Court of Appeals for the Eighth District upheld the ruling of the lower court that the Partial-Birth Abortion Ban Act was unconstitutional because it did not contain a “health exception” as required by the Stenberg v. Carhart decision. Reaching this judgment, the Court declined to address the district court’s other argument that the law imposes an undue burden on a woman’s right to have an abortion. On September 23, 2005, the Nebraska case was appealed to the U.S. Supreme Court (Gonzales v. Carhart, Docket No. 05-380). On February 21, 2006, the Court announced that it would hear the case.

On January 31, 2006, the U.S. Court of Appeals for the Ninth Circuit upheld the ruling of the Northern District of California court, presenting three reasons for its ruling: the law lacked a “health” exception, imposed an undue burden on a woman’s right to choose a previability abortion, and was impermissibly vague. On June 19, 2006, the U.S. Supreme Court announced that it would take up the California case (Gonzales v. Planned Parenthood, Docket No. 05-1382).

On November 8, 2006, the Court heard oral arguments on the Nebraska and California cases. A decision is expected in 2007.

Also on January 31, 2006, the U.S. Court of Appeals for the Second Circuit upheld the ruling of the Southern District of New York court, arguing that the federal partial-birth abortion ban law lacked a “health” exception. The Second Circuit had requested more briefs in light of the U.S. Supreme Court’s parental notice Ayotte decision (see Parental Notification section), but suspended all action on the case after the Supreme Court agreed to hear the Nebraska case.