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Update On RRP’s Challenge To The First-Ever Federal Ban On Abortion Procedures
On November 5, 2003, President Bush signed into law the so-called "Partial Birth Abortion" Ban Act of 2003, the first-ever federal law to ban medically approved abortion procedures—indeed, the first federal law to ban any medical procedures at all. As the President signed the bill into law, the RRP with the ACLU's Reproductive Freedom Project filed a lawsuit challenging the Ban, representing the National Abortion Federation (NAF) and seven individual physicians. The next day, Judge Casey of the U.S. District Court, Southern District of New York, sided with the RRP and RFP, issuing a temporary restraining order that prohibited the federal government from enforcing the Ban against NAF and its members.
The RRP and RFP argued that the Ban was unconstitutional because:
- it fails to contain an exception to preserve a woman's health, as required by Roe v. Wade and subsequent cases,
- it is an undue burden on access to abortion care because it is written so broadly that it prohibits a number of abortion procedures, including the safest and most common second-trimester abortion procedures, and
- it is written so vaguely that physicians can not determine what actions it prohibits, which is particularly problematic because the Ban imposes criminal penalties (two years in prison) on physicians who violate it by providing appropriate medical care to women who need abortions.
The federal ban also represents an unprecedented federal intrusion into New York's pro-choice policies and threatens the health of women in the state. New York has repeatedly rejected attempts to ban abortion procedures.
Importantly, the U.S. Supreme Court has already concluded that any ban on abortion procedures must include a health exception. In 2000, the Supreme Court struck down a Nebraska state law that was nearly identical to the Federal Abortion Ban in Stenberg v. Carhart. Congress attempted to get around this ruling, when passing the Federal Abortion Ban, by stating that the procedures prohibited by the Ban are never medically necessary—ignoring significant medical opinion to the contrary.
Accordingly on August 26, 2004, Judge Casey struck down the Federal Abortion Ban because it failed to provide any exception that allowed the procedure when necessary to protect a woman's health. Citing the requirements established by the Stenberg ruling, Judge Casey found the Federal Abortion Ban unconstitutional. In addition to Judge Casey's decision, federal district judges in San Francisco and Nebraska struck down the ban in parallel cases brought by Planned Parenthood Federation of America and by the Center for Reproductive Rights, respectively. In July 2005, the U.S. Court of Appeals for the Eighth Circuit affirmed the Nebraska district court's decision. Oral arguments for the appeal of the California case, which will be heard by the Ninth Circuit, are scheduled for October 20, 2005.
On September 2004, the Department of Justice appealed Judge Casey's decision. In response to this appeal, the NYCLU and the ACLU filed a brief in March 2005 arguing:
- the District Court correctly held the federal abortion ban unconstitutional because it did not permit the procedure if the woman's health requires it; and
- the Court of Appeals has other grounds upon which it could find the Act unconstitutional.
Oral arguments took place on October 6, 2005, in front of a three-judge panel.