Two Federal Courts Rule Partial Birth Abortion Ban Unconstitutional

SAN FRANCISCO – Two federal appeals courts on opposite sides of the country declared the Partial Birth Abortion Ban Act unconstitutional Tuesday, saying the measure is vague and lacks an exception for cases in which a woman's health is at stake.

The first ruling came from a three-judge panel of the 9th U.S. Circuit Court of Appeals. Hours later, a three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan issued a similar decision, affirming a 2004 ruling by a judge who upheld the right to perform a type of late-term abortion even as he described the procedure as "gruesome, brutal, barbaric and uncivilized."

The law, signed in 2003, banned a procedure known to doctors as intact dilation and extraction and called partial-birth abortion by abortion foes. The fetus is partially removed from the womb, and the skull is punctured or crushed.

President Bush signed the abortion ban in 2003, but it was not enforced because of legal challenges in several states.

The ban covers a procedure generally performed in the second trimester, in which a fetus is partially removed from the womb and the skull punctured.

A federal judge in Nebraska also has ruled the ban unconstitutional. The Nebraska ruling was upheld in July by the 8th U.S. Circuit Court of Appeals, and has been appealed to the U.S. Supreme Court.

Tuesday's decisions were also expected to be appealed to the high court.

The ban, which President Clinton twice vetoed, was seen by abortion rights activists as a fundamental departure from the Supreme Court's 1973 precedent in Roe v. Wade. But the Bush administration has argued that the procedure is cruel and unnecessary and causes pain to the fetus.