Federal Abortion Ban Struck Down in Nebraska Case: Third Court Finds Ban Unconstitutional

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Judge Issues 500-Page Ruling Responding to Congress' Claims
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Lincoln, NE
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Today, a third federal judge, in Nebraska, declared the "Partial Birth Abortion Act of 2003" unconstitutional, recognizing the law as a threat to women's health. The ban, challenged by the Center for Reproductive Rights on behalf of Nebraska physician Dr. LeRoy Carhart and three other physicians, failed to provide any exception if a woman's health is at stake and would ban more than just a single procedure.

In his ruling, U.S. District Judge Richard Kopf concluded that, "the overwhelming weight of the trial evidence proves that the banned procedure is safe and medically necessary in order to preserve the health of women under certain circumstances. In the absence of an exception for the health of a woman, banning the procedure constitutes a significant health hazard to women."

Judge Kopf also agreed that the ban would outlaw some dilation and evacuation procedures, among the safest and most common methods of abortion, starting early in the second trimester.

Back in 2000, the U.S. Supreme Court struck down a similar abortion ban in Nebraska on similar grounds. The Center for Reproductive Rights also represented Dr. Carhart as the lead plaintiff in that case, Stenberg v. Carhart. Judge Kopf presided over that trial as well.

"It's a shame that I have to continue going to court, fighting the same fight to protect my patients' health. But if the government takes this battle back to the Supreme Court, I will continue the fight to be able to provide the safest care for my patients," said Dr. Carhart. "As a doctor, it is my duty to put my patient's health and safety first. The government has no business in a medical professional's office determining the safest or best treatment for patients with no knowledge of the medical circumstances."

Responding to Congress' accusations that his earlier decision was "factually unsound," Judge Kopf wrote an extremely detailed opinion more than three times as long as those issued in the other federal abortion ban trials. He also criticized the medical conclusions drawn by Congress stating, "The long and short of it is that Congress arbitrarily relied upon the opinions of doctors who claimed to have no (or very little) recent and relevant experience with surgical abortions, and disregarded the views of doctors who had significant and relevant experience with those procedures."

"Three courts in three different parts of the country have now struck down the federal abortion ban. These trial courts have been unanimous because the Supreme Court has been clear: a patient's health and safety must be a doctor's paramount concern," said Nancy Northup, President of the Center for Reproductive Rights. "Congress ignored Supreme Court and medical opinion in enacting this ban. Congress claimed to be protecting women's health. In fact, they wrote a law that does exactly the opposite."

Last year, three federal courts began hearing legal challenges to the "Partial-Birth Abortion Act of 2003." Almost two weeks ago, a judge in New York declared the ban unconstitutional and said it could not be enforced. And in June, a judge in San Francisco also enjoined the law. The Justice Department has already filed an appeal of the San Francisco case and will likely seek appeals in the other two cases as well. The other lawsuits were brought by Planned Parenthood Federation of America, the physicians, staff and patients of Planned Parenthood affiliates nationwide, and the American Civil Liberties Union and Wilmer Cutler Pickering LLP on behalf of the National Abortion Federation and other doctors.