Two United States Courts of Appeal (Second and Ninth) ruled today that the Partial Birth Abortion Act is unconstitutional. The Second Circuit (NY, NJ, CT) did not, however, invalidate the Act. Instead, they have held it open for 30 days for the parties to offer remedies for the failings in the law, which does not contain any exception for the health of the mother. Of the three judges in the panel, Judge Straub dissented, stating according to
New York Times that he does not believe that abortion rights "extend[] to the destruction of a child that is substantially outside her body." Chief Judge Walker, who concurred in the opinion did so only because he felt constrained by precedent, a 2000 ruling by the Supreme Court, that mandates that abortion laws must contain an exception for the health of the mother. He stated that it was distasteful to him to do so and, without citing any evidence, that "many Americans, probably most Americans, find [so-called partial birth abortion] exceedingly offensive on moral grounds."
The Eighth Circuit in St. Louis issued a similar ruling against the Act in July. The issue will now likely be appealed to the United States Supreme Court and I imagine that there will be the required four votes for cert.
This case strikes me as the type of case that will continue the erosion of abortion rights because the Court can depart from its 2000 ruling requiring a health exception without explicitly overruling it. Namely, they can now say that partial birth abortion does not require a health exception because, in the words of Judge Straub a woman's abortion right does not extend "to the destruction of a child substantially outside her body." Therefore, the Court could allow Congress to ban this procedure because the child's interest in life outweighs the woman's right. If the Court could get 5 votes behind this proposition, Kennedy being the question, then Courts would start weighing the merits of particular medical procedures. Moreover, the rationale underlying the exception for maternal health would be undermined as courts would weigh competing interests as opposed to a blanket protection. I imagine that one of these three cases, if not all three consolidated, will make it before the Supreme Court before long. More troubling would be if the Supreme Court adopted Walker's position that the moral values of most Americans, however this is determined, should or could overrule a Constitutional protection for women or be a factor in the evaluation of the exercise of a Constitutional right. This result is unlikely, and if adopted would most likely be confined to the abortion arena.