ON JUNE 28, 2000, the U.S. Supreme Court yet again reaffirmed the basic principles of Roe v. Wade when it struck down the improperly labeled "partial-birth abortion" ban. In Stenberg v. Carhart, the court recognized that "partial-birth" was a political term coined for propaganda, and wisely judged the law for what it was: an attempt to place undue burdens on women seeking a type of abortion usually performed for reasons relevant to maternal health. However, in a demonstration of complete disrespect for the supreme law of the land, President Bush signed into effect the Federal Abortion Ban -- and act which bore a striking resemblance to the Partial Birth Abortion Ban Act of 2003. This law is a regurgitated version of the law struck down in Stenberg v. Carhart and should be similarly struck down for violating a number of American legal traditions.
The new law has already been ruled unconstitutional in the U.S. Court of Appeals for the Second, Eighth, and Ninth Circuits. The ACLU puts it bluntly: "To date, every court to issue a decision in these cases has struck down the ban because it endangers women's health." The precedent clearly favors an overturning of the Federal Abortion Ban.
The legal problems inherent to the law are the very same ones addressed in the Stenberg case. In Planned Parenthood v. Casey, the Court majority ruled that legislative regulations of abortions may not place an "undue burden" on women seeking abortions. The wording in the Federal Abortion Ban conveniently (for the pro-life agenda) creates a new term, "partial-birth abortion," which is not nor has ever been used as a medical term. The law's definition of a partial birth abortion most closely resembles the dilation and extraction procedure carried out extremely rarely in order to protect maternal health. However, the definition is so broad (and surprisingly unscientific) that it also arguably covers dilation and evacuation procedures, which are by far the safest (and most common) procedure during the second trimester. The government argues that its "intention" was to ban only the dilation and extraction procedure, but read properly, the law would effectively ban safe abortions as early as 15 or even 12 weeks into the pregnancy. Applying the Casey test, clearly outlawing abortion as early as 15 weeks into the pregnancy places more than a mere undue burden on women.
Furthermore, the law still fails to provide adequate attention to the health of the woman. The law provides, at best, a narrow and unacceptable health provision. Of its many failures, perhaps the most egregious is its complete omission of cases in which fetal anomalies are so severe as to have dangerous and even fatal health implications.
Most offensive is Congress's unacceptable method of inferring policy from facts -- mainly showing absolute disregard for them. In the law, Congress claims that "the facts indicate" that the banned procedures are "never necessary to preserve the health of a woman" and that they in fact pose "serious risks to a woman's health" and lie "outside the standard of medical care." Every court reviewing the matter has found these claims to be so unreasonable; in fact, some of the government's own witnesses have provided testimony against the government's interests. Most compelling, the American College of Obstetricians and Gynecologists, which represents more than 90 percent of all ob-gyn specialists in the U.S, has come to conclusions opposite of the Federal Abortion Ban. On the ban, the ACOG says "the intervention of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous."
Using completely unsupported inferences based on facts that support the opposing side, the Bush administration is opportunistically attempting to overturn American legal principles by a mere majority vote. Rather than respecting the principles established in Roe v. Wade, supported by over a dozen cases since, the Bush administration approaches legal philosophy as a mere function of court composition. This offensive notion that legal principles are founded upon court composition rather than principles of liberty and fairness should be all together by the Court, as I am confident it will be. In Gonzales v. Carhart, the Supreme Court should and most likely will reject unfounded legislative interference with the supreme law of the land.
Sina Kian's column appears Tuesdays in The Cavalier Daily. He can be reached at skian@cavlierdaily.com.
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