We have been down this road before. On Wednesday, a third federal judge held that the federal abortion ban is unconstitutional. Joining judges in New York and San Francisco who also struck down the law, Judge Richard Kopf of the U.S. District Court for the District of Nebraska held in Carhart v. Ashcroft that the ban “constitutes a significant health hazard to women.” In a painstakingly detailed, somewhat conservative, and almost 500-page opinion, he declared the ban unconstitutional for two reasons.
First, the law falls because it lacks an exception to protect women’s health. Second, it imposes an undue burden on women because, even after accepting a narrowing construction offered by Attorney General John Ashcroft, the law is still so broadly written that it would ban some dilation and evacuation abortions. Dilation and evacuation is the safest and most common method of abortion used starting at approximately 12 weeks of pregnancy, towards the end of the first trimester.
If this all sounds familiar, it should. The “Partial-Birth Abortion Ban Act of 2003” was enacted in blatant defiance of the Supreme Court’s decision issued just three years before in Stenberg v. Carhart, 530 U.S. 914 (2000). It is the latest volley in the deceptive and unrelenting campaign to ban safe and legal pre-viability abortions under the guise of banning something called “partial-birth abortion.” This campaign has been dependent on two myths since its inception in the mid-1990s.
The first is that the term “partial-birth abortion” — undoubtedly developed through the use of that wonderful invention called the “focus group” — refers to one specific procedure. In fact, the term has no medical meaning and has been defined in statutes, including this federal abortion ban, so broadly as to sweep within its net some of the safest procedures used.
The second myth is that “partial-birth” has something to do with abortions taking place at birth, in other words, at full term or “late term.” But nothing in the statute limits its application to post-viability abortions and, in fact, it appears not to impact any post-viability abortions at all. Kopf even declined to rule on the statute’s constitutionality post-viability, because there was simply no evidence that any post-viability abortions are being performed in a way that would violate the statute and thus no way for him to evaluate whether those abortions were “necessary” to preserve a woman’s health.
We disproved both myths in the Supreme Court and in the countless other cases filed across the country leading up to the Carhart decision and proved that the bans were a direct attack on safe previability abortion procedures. As Justice Stephen Breyer wrote in the Carhart decision, the bans would have had “tragic consequences.” Rather than heed the Court’s admonitions, though, “Congress tried to turn the [Carhart] decision on its head,” in the words of Kopf, and simply repeated the two errors that doomed the Nebraska statute struck down in Carhart.
How did Congress justify such a blatant attack on the Supreme Court? In a disingenuous attempt to justify thumbing their nose at the Court, Congress made “findings” in the Act that claimed that the banned procedures were never necessary to protect a woman’s health and, in fact, were dangerous to women. They also criticized the trial court findings in the original Carhart case, findings made by none other than the same Kopf, as “questionable,” and “based on a dearth of evidence.”
But just saying something doesn’t make it so. As the three judges evaluating the federal abortion ban all agreed, not only were these Findings unsupported by the Congressional Record, but that Record actually proved the opposite. As Kopf politely put it, “Congress grievously erred,” and “no reasonable and unbiased person could come to a different conclusion.”
Why would Congress enact and President George W. Bush sign an unconstitutional bill? The law’s proponents have even admitted that the ban was unconstitutional under the U.S. Supreme Court’s 2000 decision in Carhart. The answer is that they are hoping for a NEW Supreme Court, one that will overturn Carhart‘s 5-4 decision and, even more, strike at the core holding of Roe itself. As Douglas Johnson of the National Right to Life Committee and the right-wing Family Research Council promised, future appointments to the Supreme Court will determine whether “partial-birth abortion” and, indeed, all abortions, remain legal. Given that 10 years have passed since the last Supreme Court appointment, the longest period of time since the early 1800s, and given the close vote on Carhart, anti-choice activists may in fact keep their promise.
Priscilla Smith is director of the Domestic Legal Program at the Center for Reproductive Rights, a nonprofit legal advocacy organization dedicated to promoting and defending women’s reproductive rights worldwide. She was lead counsel in Carhart v. Ashcroft, the Center’s challenge to the federal abortion ban, and was co-counsel in Stenberg v. Carhart, the Center’s challenge to a nearly identical Nebraska law that went to the U.S. Supreme Court.