Justice Dept. Challenges Nebraska's Judge Ruling on Abortion Ban

The Justice Department has filed an appeal to a ruling by a Nebraska judge who ruled The Partial-Birth Abortion Act was unconstitutional in September.

In its Nov. 30 appeal to the 8th U.S. Circuit Court of Appeals, the department said that U.S. District Judge Richard Kopf of Lincoln in striking down the Act ignored evidence gathered by Congress in passing the law.

Lincoln had overturned the partial-birth abortion ban for two reasons: it poses an undue burden on a woman's right to an abortion and does not make an exception in the case where the woman's health is in danger, both which the department challenged in its appeal.

After nine years of hearings, Congress has found partial-birth abortion “to be gruesome, inhumane, never necessary to preserve the health of women, and less safe than other readily available abortion methods,” refuted the appeal.

The department also plans to challenge decisions made by New York and San Francisco courts to overturn the federal act.

On Thursday, The American Center for Law and Justice (ACLJ) representing a group of 26 Republican House Representatives and The Christian Legal Society (CLS) on behalf of pro-family Christian groups filed amicus briefs in the department’s appeal in the Nebraska case. Both legal groups support the department’s position that the Partial-Birth Abortion Act is constitutional.

“What matters most to this specific defense is the protection of all children who, while still alive and therefore capable of being protected, break the plane that currently marks the dividing line between non-personhood and personhood, between abortion and infanticide,” states ACLJ’s brief.

“Partial-birth abortion represents the beachhead of abortion’s assault on postnatal life, the bridge between abortion and infanticide,” said Jay Sekulow, Chief Counsel of the ACLJ, which also plans to file briefs in the appeals to the New York and San Francisco rulings.

“We are supporting the Department of Justice in arguing that Congress not only acted properly in passing the ban, but that such a ban is needed to ensure that partially born children receive the same constitutional rights afforded to all persons.”

CLS attorneys argued in the brief that the lower court in Nebraska erred in concluding that the Constitution requires the Partial-Birth Abortion Act to contain an exception for the health of the mother.

President Bush passed the Partial-Birth Abortion Act in November 2003 to ban a late-term abortion procedure in which doctors partially deliver an unborn child feet first, puncture or crush its skull, then extract its brains before removing it completely from the womb. Doctors who perform the procedure call it“intact dilation,” “extraction,” or “D&X." The federal ban had not been enacted pending courts decisions.

“A bare description of this barbaric procedure puts the lie to the abortion lobby’s argument that delivering a baby up to its head then crushing its skull could ever be ‘necessary’ to preserve the mother’s health,” said CLS Chief Litigation Counsel Steven H. Aden. “Congress properly reflected the will of the majority of the American people when it determined to put a stop to the practice of slaughtering innocents who are inches from birth.”

CLS represents groups including Christian Medical Association, the Alliance Defense Fund, the National Association of Evangelicals, Focus on the Family, the Family Research Council, Concerned Women for America and the Religious Liberty Commission of the Southern Baptist Convention, who say they represent tens of millions of pro-life members who are deeply committed to preserving the sanctity of human life.

The Nebraska lawsuit challenging the ban was filed by the Center for Reproductive Rights on behalf of physicians, including Dr. LeRoy Carhart, who brought a challenge that led the U.S. Supreme Court in 2000 to overturn a similar ban passed by Nebraska lawmakers.

Sekulow said he expects the case to eventually end up before the Supreme Court.