A Federal Judge in San Francisco has struck down the “Partial Birth” Abortion Ban, finding that it’s unconstitutional.
This is good news, but it doesn’t end the issue. The case was one of three lawsuits against the PBA ban working their way through the system; it’s also possible that the Supreme Court might decided to consider the ban. Plus, there’s the appeals court, if I understand things correctly.
As I had predicted, the PBA ban was found to be unconstitutional both for vague language and for not having an exception to preserve a woman’s health. In addition, it’s unconstitutional for placing an undue burden on women seeking abortions of nonviable fetuses. From the New York Times:
“The term `partial-birth abortion,’ ” Judge Hamilton wrote, “is neither recognized in the medical literature nor used by physicians who routinely perform second-trimester abortions.”
In other forms of abortion, too, Judge Hamilton found, “the fetus may still have a detectable heartbeat or pulsating umbilical cord when uterine evacuation begins” and thus “may be considered a `living fetus.’ ” [...]
She also noted that the law does not distinguish between procedures used before fetal viability, when undue burdens are forbidden, and those used after, when the government may regulate or ban abortion except where it is necessary for the preservation of the life or health of the woman.
“Because physicians may face criminal prosecution under the act for violative procedures,” she wrote, “the nature of which they cannot always predict, that act would have a significantly negative impact on their practice and their relationships with their patients, and, in some circumstances, already has.”
Judge Hamilton also ruled that the law was too vague. “It deprives physicians of fair notice and encourages arbitrary enforcement,” she wrote, focusing in particular on the terms “partial-birth abortion” and “overt act.”
The complete decision – which is 117 pages long – can be read here (.pdf file).