LIFE DIGEST: Lack of health exception still proves unhealthy for partially born infants; court strikes clinic safety requirements
By Tom Strode
Jun 7, 2005


WASHINGTON (BP)--Even the most conservative appeals court in the federal judiciary apparently is unable to uphold a ban on partial birth abortion.

The Fourth Circuit Court of Appeals struck down the Virginia legislature’s prohibition on the gruesome procedure June 3. In doing so, a divided three-judge panel used the same reasoning invoked by the U.S. Supreme Court and other federal judges –- the ban lacks an exception to protect the health of the mother.

The decision demonstrated once again the dilemma legislators face when they seek to bar a procedure that involves the killing of a nearly totally delivered baby normally in the fifth or sixth month of pregnancy. If they refuse to include an exception permitting an abortion when the mother’s health is threatened, a federal court will strike it down. If they incorporate such an exception, the legislation is meaningless.

Why? The answer dates to Jan. 22, 1973. The Supreme Court released two opinions on abortion on that date; the more famous, Roe v. Wade, struck down state laws prohibiting abortion. Its companion, Doe v. Bolton, defined maternal health so expansively it opened a huge loophole for abortion throughout all stages of pregnancy. The justices said health included “all factors –- physical, emotional, psychological, familial and the woman’s age –- relevant to the well-being of the patient.”

As a result, the United States has an abortion regime under which an abortion can be requested and carried out for any reason. Such a demand has the protection of the country’s highest court.

When the Supreme Court struck down Nebraska’s ban on partial birth abortion in 2000, one of its reasons for doing so was the law’s lack of a health exception. That law was patterned after legislation approved twice by Congress in the 1990s but vetoed both times by President Clinton.

After the justices rejected Nebraska’s language, Congress revised its earlier version, and President Bush signed it into law in 2003. One of the changes was a declaration the method is neither safe for women nor necessary to preserve their health, based on the testimony of physicians. As before, the law also included an exception when the mother’s life is endangered.

Last year, however, federal judges in New York City; Lincoln, Neb., and San Francisco invalidated the new law. In New York, Judge Richard Casey seemed by far the most sympathetic to the law’s intentions, but he implied in his opinion the Supreme Court precedents left him no choice but to strike down the measure.

In upholding a lower court’s decision June 3, the Fourth Circuit’s Blane Michael said the “lack of a health exception alone provides a sufficient basis for invalidating restrictions on a woman’s right to have an abortion.” Diana Gribbon Motz joined Michael in the majority. Clinton nominated both to the bench.

Paul Niemeyer, appointed by the first President Bush, dissented, saying the majority interprets the Supreme Court’s 2000 ruling against Nebraska’s law “to create a per se constitutional rule that requires any ban on partial birth abortion to contain language protecting the health of the mother, regardless of the scope of the law, the nature of the relevant facts, and the actual need for a health exception.”

Supporters of the law have one hope in the Fourth Circuit. The state of Virginia may ask the appeals court as a whole to review the decision. The Fourth Circuit, the Richmond, Va.-based court that is generally considered the most conservative of the 12 federal appeals circuits, has at least two members who have been mentioned as possible nominees to the Supreme Court by President Bush -– Michael Luttig and J. Harvie Wilkinson.

Abortion rights advocates understand the powerful weapon they have been granted by the high court. “As long as the court follows Supreme Court precedent, we should have no problem,” Priscilla Smith of the Center for Reproductive Rights told The Washington Post when asked about a review by the full Fourth Circuit.

In a partial birth abortion, a doctor delivers an intact baby, feet first, until only the head is left in the birth canal. The doctor pierces the base of the infant’s skull with surgical scissors, then inserts a catheter into the opening and suctions out the brain. The collapse of the skull provides for easier removal of the baby’s head.

UNSAFE IN MISSISSIPPI –- A federal judge struck down a Mississippi law designed to protect women who seek abortions after the first trimester of their pregnancies.

Judge Tom Lee ruled June 1 against a state law that barred an abortion after 13 weeks of a woman’s pregnancy unless it takes place in a clinic that meets ambulatory surgical center standards, The Jackson Clarion-Ledger reported. The state’s only abortion clinic, which is located in Jackson, does not qualify for such a license, according to the newspaper.

In a comment once again demonstrating the commitment of some abortion-rights advocates to the deaths of children over the safety of women, Susan Hill called Lee’s ruling a “really important decision, especially for the women of Mississippi,” according to The Clarion-Ledger. Hill is the president of the National Women’s Health Organization, which owns the Jackson clinic.

Terri Herring, president of Pro-life Mississippi, told the Associated Press, according to LifeNews.com, “If we’re going to claim to have safe, legal abortion, the least we can do is make it safe. Unless these clinics stop at first trimester, they’re not safe. And they’re never safe for unborn children.”

Under a more recent law, the Jackson clinic may apply for a license to achieve the state’s surgical center standards, The Clarion-Ledger reported. That law takes effect July 1, according to the paper.

“July 1st is D-Day for the abortion clinic,” Herring said, the paper reported.

SAFETY IN FLORIDA, MAYBE -– Florida Gov. Jeb Bush has signed into law a bill intended to strengthen safety standards in abortion clinics in the state.

The new law, which takes effect July 1, requires abortion clinics to undergo the same kind of state oversight and inspections as hospitals do, LifeSiteNews.com reported. The law applies only to clinics that perform abortions after the first trimester, according to the report.

“This is a simple bill that says women are deserving of the same quality care when they go to a doctor’s office or a hospital or, sadly, to an abortion clinic,” Bush said, according to LifeSite News.

Florida reported 85,000 abortions last year, and only about 9,000 took place after the first trimester, LifeSite News reported.

SUICIDE BILL DEAD, FOR NOW -– An effort in the California legislature to legalize physician-assisted suicide in the state has failed for the time being.

The legislation was withdrawn as a stand-alone bill but may be attached to another piece of legislation in an effort to pass it, according to Californians Against Assisted Suicide.

CAAS spokesman Tim Rosales said June 6 the development is a “crushing defeat for doctor-assisted suicide supporters. When people in California began to understand that this bill was not about the right to die but is in fact about doctors acting as accessories to their patient’s suicide, support disappeared.”

Oregon is the only state that has legalized assisted suicide.

LIMIT EMBRYOS -– Sen. Sam Brownback, R.-Kan., a leading pro-lifer in Congress, has called for limits on the number of embryos created during in vitro fertilization so that fewer of the nascent human beings are left over in clinics.

Speaking on ABC News’ “This Week” May 29, Brownback said, “In a number of countries, they limit the number of these in vitro fertilizations from outside the womb. They say you can do this, but you have to do these one or two at a time, so that they’re implanted [on] that basis. That’s a way that you can look at that, instead of going on this massive scale of what we’ve done here.”

Brownback’s comments were reported by The Washington Times.

The United States has no restrictions on how many embryos may be created during fertility treatments. A woman may have several embryos created and a portion of them implanted in her womb in an effort to produce a baby that reaches full term. It is estimated there are about 400,000 embryos in storage in fertility clinics in the United States.
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