Yesterday, on the same day Samuel Alito was sworn in as a Supreme Court Justice, two federal appeals courts issued rulings that the federal abortion procedure ban was unconstitutional because it lacked an exception for cases in which a woman’s health is in danger. The 2nd Circuit Court, in New York, chose to give both sides 30 days to address ways to fix the law and bring it into line with the Constitution. However, the 9th Circuit decision found the statute so broad and potentially vague that there was no option but to totally invalidate it and uphold a permanent injunction on its enforcement. The Justice Department had argued that the procedure was never medically necessary to protect women’s health, an argument which the court, based in California, rejected.
The so-called partial birth abortion ban was vetoed twice by President Clinton, then signed into law by President Bush in 2003. It has never been enforced. It was previously challenged in Nebraska in the 8th US Circuit Court, which also invalidated the statute. That case is now being appealed to the US Supreme Court.
A similar Nebraska state law was struck down as unconstitutional by the Supreme Court with a 5-4 vote in 2000, with Sandra Day O’Connor in the slim majority. Alito, who has replaced O’Connor on the Supreme Court, has said that the Constitution does not protect a woman’s right to an abortion.