The Partial-Birth Abortion Ban Act of 2003, which bans all D&X (dilation and extraction) abortions in which fetuses are removed vaginally before termination, contains no exception to protect the mother's health. Does this render it unconstitutional under Court precedent?
A Note About the Term "Partial-Birth Abortion"
The phrase "partial-birth abortion," which brings to mind the image of a pregnancy carried to term with the infant electively killed during delivery, is (to put it mildly) misleading. D&X abortions are actually performed as early as 16 weeks, and generally as emergency medical procedures rather than electively. The phrase "partial-birth abortion" was coined in 1995 by a right-wing legislator whose understanding of the procedure was incomplete, and is not used by medical professionals.
If At First You Don't Succeed...
This case revisits Stenberg v. Carhart (2000), in which the Supreme Court struck down a substantially identical Nebraska law for not including a health exception. Stenberg was decided 5-4. Since that time, Justice Sandra Day O'Connor--who joined with the majority--has been replaced by the more conservative Justice Samuel Alito. Will that be enough to tip the balance?
What's At Stake?
Under the D&X abortion ban, a severely deformed and non-viable, but technically living, fetus would have to be terminated inside the uterus rather than delivered and then terminated, even if doing so could jeopardize the woman's ability to become pregnant in the future.