8th Circuit Partial-Birth Abortion Ruling

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Court Rules Partial-Brith Abortion Ban Unconstitutional

Special Report - July 11, 2005
Last Friday, a three-judge panel of the Eighth U.S. Circuit Court of Appeals in St. Louis, Missouri upheld a lower court ruling that the federal Partial-Birth Abortion Ban Act of 2003 is unconstitutional. The court relied heavily on Stenberg v. Carhart, a 2000 case in which the U.S. Supreme Court struck down a Nebraska ban on partial-birth abortion by a 5-4 vote. “[W]e are bound by the Supreme Court’s conclusion [in Stenberg] that ‘substantial medical authority’ supports the medical necessity of a health exception,” wrote Judge Kermit Bye. “Because the Act does not contain a health exception, it is unconstitutional.”

The federal ban, passed by votes of 281-142 in the House of Representatives and 64-34 in the Senate, lacks a health exception because Congress found that “partial-birth abortion is never medically indicated to preserve the health of the mother,” but instead “poses additional health risks to the mother.” The Eighth Circuit disagreed, saying, “We know from Stenberg that ‘substantial medical authority’ supports the conclusion that the banned procedures obviate health risks in certain situations.”

The Supreme Court has defined “health” liberally. In Doe v. Bolton, a 1973 companion case to Roe v. Wade, the Court held that “[M]edical judgment [in abortion cases] may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient. All these factors may relate to health.” Some observers have speculated that Congress chose not to include a health exception out of concern that the Court’s broad definition of “health” might render the ban ineffective, since doctors could claim that a partial-birth abortion was an “emotional” or “psychological” necessity. Such an assertion would be difficult to disprove.

The Eighth Circuit will likely not have the final say on whether the federal ban survives. The Bush administration will almost certainly appeal the ruling to the Supreme Court, and the determination of that panel will likely hinge on the decision of the justice who replaces the retiring Sandra Day O’Connor, who cast the decisive fifth vote to strike down the Nebraska ban in Stenberg.