Advancing Sexual and Reproductive Health and Rights
 
The Guttmacher Report on Public Policy
December 1999, Volume 2, Number 6
 
For the Record

Appeals Courts Differ Over State 'Partial Birth' Abortion Bans

In late September, a three-judge panel of the Court of Appeals for the Eighth Circuit unanimously struck down "partial-birth" abortion bans enacted in Arkansas, Iowa and Nebraska. Rejecting the argument that these laws are aimed at a discrete abortion procedure, tantamount to "intact dilation and extraction" (D&X), the panel ruled that the statutes are so broadly written as to prohibit several common abortion procedures performed early in pregnancy.

A month after the Eighth Circuit's decision, however, the full Court of Appeals for the Seventh Circuit came to the opposite conclusion, ruling 5-4 that similarly worded bans enacted in Illinois and Wisconsin can be applied in a constitutional manner. The court acknowledged that the current language of the statutes is an "imperfect match" for the medical definition of D&X. Nevertheless, it upheld the bans as they apply to D&X abortions. At the same time, the court took the unusual step of instructing the federal district courts in both states to issue "precautionary injunctions" to prevent prosecution for abortion procedures other than D&X until the courts further clarify the laws.

On November 15, Nebraska's attorney general petitioned the Supreme Court to review the Eighth Circuit's decision. Appeals of the Seventh Circuit's ruling are expected to be filed shortly.

In early November, meanwhile, Maine voters soundly rejected a proposed ban on "partial birth" abortion, 55-45%. Opponents of the measure successfully cast the ban as so vague that it could be construed to outlaw most abortions, even early in pregnancy. In 1998, voters defeated similar "partial-birth" bans in Colorado and Washington State.