FROM STLtoday.comÂ
By David A. Lieb
Associated Press
Monday, Nov. 28 2005
JEFFERSON CITY, Mo. (AP) — A federal appeals panel on Monday upheld a
decision striking down a Missouri ban on certain late-term abortions that lower
courts had concluded lacked an exception for the health of pregnant women.
The 1999 law sought to ban what critics call “partial-birth abortion,” but
it was put on hold by a federal judge one day after the Legislature enacted it
by overriding a gubernatorial veto.
After years of legal battles in both state and federal courts, U.S. District
Judge Scott O. Wright declared the law unconstitutional in July 2004, citing
the lack of a health exception. A three-judge panel of the 8th U.S. Circuit
Court of Appeals in St. Louis upheld that decision Monday.
Wright and the appeals panel both cited a 2000 U.S. Supreme Court decision
striking down Nebraska’s “partial-birth abortion” ban for failing to have a
health exception.
The appeals court panel said Missouri had failed to show there had been any
factual developments since the 2000 ruling, such as a new medical consensus or
new studies on the necessity of the procedure.
Abortion rights advocates said they hoped Thursday’s ruling would put an end
to the six-year legal battle.
“The Missouri law, like so many in other states, is clearly
unconstitutional, because the Missouri law contains absolutely no exception for
when the health of a woman might be at risk during a pregnancy,” said Paula
Gianino, president of Planned Parenthood of the St. Louis Region, whose
Reproductive Health Services entity was the lead plaintiff.
A spokesman for Attorney General Jay Nixon said the office was reviewing the
court decision to determine its next step. Nixon could appeal the decision to
the full 8th Circuit or the Supreme Court, or could drop the matter.
Gov. Matt Blunt, who as a House member was one of the original co-sponsors
of the legislation, said he was “extremely disappointed with this court ruling
that continues to allow barbaric partial-birth abortions in our state.”
“I am hopeful that we can find a way to ensure that these babies are
protected,” Blunt said.
The invalidated Missouri law created the crime of “infanticide,” defined as
intentionally causing the death of a baby “when the infant is partially born or
born.” Abortion physicians violating the ban could have been charged with a
felony similar to murder.
Although the law did not specifically use such terminology, the Missouri
Court of Appeals determined in 2002 that it criminalized the medical procedure
known as intact dilation and evacuation or extraction, in which a fetus is
partially delivered before being killed. The procedure generally is performed
in the second or third trimester.
Patty Skain, executive director of Missouri Right to Life, said it would be
pointless to pursue new legislation banning the procedure while allowing an
exception for a woman’s health because abortion providers could interpret the
exception broadly.
Gianino disputed that assertion, suggesting that physicians take their tasks
seriously and perform late-term abortions only rarely.
In July, a panel of the 8th U.S. Circuit Court of Appeals also upheld a
judge’s decision striking down the federal Partial-Birth Abortion Ban Act as
unconstitutional for failing to make an exception for a woman’s health.
President Bush’s administration has asked the Supreme Court to overturn that
decision.
The Supreme Court’s 2000 decision was decided by a 5-4 majority that
included retiring Justice Sandra Day O’Connor. Bush has nominated as her
replacement 3rd U.S. Circuit Court of Appeals Judge Samuel Alito, whose track
record on abortion could suggest a shift toward more restrictions.
Some abortion opponents said the best hope of reviving Missouri’s law rests
with the Supreme Court.
“The appeals court’s decision highlights the urgent need to change the
makeup of the U.S. Supreme Court so that Congress and state legislatures can
totally ban partial-birth abortion,” said Samuel Lee of Campaign Life Missouri.
