With three federal appellate courts now ruling the Partial Birth Abortion Ban Act of 2004 unconstitutional, the issue likely will be decided by the newly configured Supreme Court, with two conservative justices recently appointed by President Bush.

Jordan Lorence, an attorney with the public-interest legal group Alliance Defense Fund, told WND he believes it’s probable that one of the three cases will be heard by the high court his fall, with a decision coming in June 2007. A ruling last year by the 8th Circuit already has been appealed.

On Tuesday, the 9th Circuit Court in San Francisco and the 2nd Circuit Court in Manhattan both ruled against the law signed by President Bush, saying it lacks an exception for when a woman’s health is in danger.

“We are reluctant to invalidate an entire statute,” 9th U.S. Circuit Court of Appeals Judge Stephen Reinhardt wrote. “However, after considering all of the obstacles to our devising a narrower remedy, we conclude that such is our obligation.”

In the 2nd Circuit ruling, however, there was a strong dissent by Judge Chester J. Straub, who asserted Congress’ determination that the procedure is never medically necessary to protect a women’s health is well founded.

“Allowing a physician to destroy a child as long as one toe remains within the mother would place society on the path towards condoning infanticide,” he said.

“I find the current expansion of the right to terminate a pregnancy to cover a child in the process of being born morally, ethically and legally unacceptable,” Straub contended.

Attorneys for Planned Parenthood, which brought the lawsuit decided by the 9th Circuit, applauded the ruling.

“Even though the supporters of this law purported to be banning one particular abortion procedure, the law as the court found would in fact chill doctors from performing virtually any second trimester abortion,” said Eve Gartner, senior staff attorney.

The pro-life group Operation Rescue called the rulings “nonsensical.”

“On one had we have courts that convict people like Scott Peterson for double homicide when it involves the death of a pregnant woman and her pre-born baby,” said Operation Rescue President Troy Newman. “Then on the other hand, we have courts that determine that the ‘gruesome, brutal, barbaric and uncivilized’ partial-birth abortion is a Constitutional right.”

Newman said the cases should go to the Supreme Court, where there would be “a golden opportunity for (Justices John ) Roberts and (Samuel) Alito to put their conservative judicial philosophies to good use.”

During their confirmation hearings, neither of the new justices revealed how they would rule on abortion cases, arguing, as have others, that commenting on an issue that likely will come before the court would be inappropriate.

Last July, a three-judge panel of the U.S. Court of Appeals for the 8th Circuit in St. Louis agreed with a federal district court judge in Nebraska that the ban is unconstitutional.

After that ruling, pro-life advocates said the court exhibited a “failure to understand the barbarity of the procedure.”

“This court apparently would have us believe that there is a constitutional right to crush the skull of a baby that is halfway out of the mother’s body,” said Gary McCaleb, senior counsel for the Alliance Defense Fund. “Americans overwhelmingly reject this barbaric procedure, and it is their will, not the will of the courts, that will win in the end.”

McCaleb argued that health exceptions are not well defined, meaning almost anything can become an exception.

“Including such an exception would render the ban nearly useless,” he said. “Moreover, Congress found that the evidence clearly demonstrates that no such exception would ever be needed.”

The Partial Birth Abortion Ban Act of 2003 says: “A partial-birth abortion is never necessary to preserve the health of a woman, poses serious risks to a woman’s health, and lies outside the standard of medical care. There is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures.”

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Partial-birth abortion ban ruled unconstitutional

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