A federal appeals court today upheld a district court decision striking down the federal law banning partial-birth abortion.

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, passed by Congress in 2003, is unconstitutional because it does not contain an exception for the health of the mother.

Pro-life advocates said the court has 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.”

ADF funded a friend-of-the-court brief for the 8th Circuit in the case, Carhart v. Gonzales.

In the court’s opinion, opinion, Judge Kermit Bye wrote, “When ‘substantial medical authority’ supports the medical necessity of a procedure in some instances, a health exception is constitutionally required. In effect, we believe when a lack of consensus exists in the medical community, the Constitution requires legislatures to err on the side of protecting women’s health by including a health exception.”

The Nebraska case was one of three heard last year on the issue. Judges in New York and San Francisco also ruled against the law. The decisions have been appealed and likely will end up in the U.S. Supreme Court, according to analysts.

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