Defending the innocent

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On Wednesday, President Bush enacted into law the Partial-Birth Abortion Ban Act. Many pro-life groups applauded the president's ban on the gruesome procedure of partially delivering an infant and killing it. However, less than one hour after the president signed the legislation, a federal judge in Nebraska -- U.S. District Judge Richard Kopf, appointed in 1992 by Mr. Bush's father -- issued a limited temporary restraining order against the law. The judge questioned the law's constitutionality and expressed concern that the ban contains no exception for the mother's health.

Pro-choice groups such as Planned Parenthood Federation of America (PPFA) also took legal action. PPFA joined Planned Parenthood of Golden Gate in filing a lawsuit in a San Francisco federal court Oct. 31. The case, PPFA vs. Ashcroft, challenges the Partial Birth Abortion Ban Act of 2003 and wants the court to deem the ban unconstitutional. PPFA also would like the court to impose a preliminary injunction to prevent the act from taking effect. The National Abortion Federation filed a suit in New York on the same grounds. In both cases, the judge ruled in favor of the plaintiffs and imposed a temporary injunction on the ban.

The lawsuits are using the same argument advanced in Stenberg vs. Carhart. In June 2000, the U.S. Supreme Court declared Nebraska's partial-birth abortion ban legislation unconstitutional because it lacks a health exception for the mother and its broad language imposes an "undue burden" on a woman's right to choose abortion.

But legal experts point out that the concerns expressed by the high court have been dealt with in the new law. According to Richard Thompson, chief counsel of the the Thomas More Law Center, which has been working in conjunction with members of the Senate on this issue, the ban is constitutionally sound. "We have reviewed this legislation carefully, and believe it properly addresses the problems the Supreme Court found in its [Stenberg vs. Carhart] decision three years ago," Mr. Thompson said.

As for the language of the ban imposing an "undue burden" on a woman's right to choose abortion, Mr. Thompson explained that the law clearly defines partial-birth abortion without prohibiting other types of abortion. The law still does not put an end to the death of innocent children. "We must keep in mind that this law prohibits only the medical procedure used to kill approximately 5,000 of the 1.3 millions babies aborted each year," said Mr. Thompson. "These babies can still be killed using other medical procedures while in the womb. And these unborn babies are being killed by procedures no less horrific and barbaric. We have a long way to go."

While obviously the lowest magistrates of the court have legal jursidiction in such cases, in light of the fact that Congress passed the legisltion, Mr. Bush signed it into law and a recent USA Today/CNN Gallup poll reveals that 70 percent of Americans are in favor of banning this hideous procedure, the lawsuits against the ban undercut the spirit of democracy. Under such circumstances, lower courts should prefer to let higher appellate panels judge such matters.

The legislation is constitutionally sound, and we hope it prevails in its eventual Supreme Court resolution.