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The Federal Abortion Ban: Supreme Court Hearing for Gonzales v. Carhart, FAQ

1. What is this law about?
In late 2003, Congress passed and President Bush signed into law the "Partial-Birth Abortion Ban Act of 2003," the first federal ban on abortions. The act would prohibit a wide range of abortions performed in the second trimester. This law is not about abortions performed late in pregnancy. Forty states and the District of Columbia already ban third-trimester abortions except when the life or health of the woman is at stake.

The law fails to safeguard women because it does not contain an exception to protect their health. It would outlaw some abortions that doctors say are safe and among the best for women's health in the second trimester. The American College of Obstetricians and Gynecologists and many other medical organizations oppose the federal ban.

The abortion ban's supporters have used misleading rhetoric to mask the fact that it bans some safe and medically-appropriate abortions and is part of a larger agenda to outlaw all abortions.

2. Who is challenging the abortion ban in court?
In 2003, three separate lawsuits challenging the ban were filed in federal district courts by:

  • the Center for Reproductive Rights on behalf of Dr. LeRoy Carhart, Dr. William G. Fitzhugh, Dr. William H. Knorr, and Dr. Jill L. Vibhakar;
  • Planned Parenthood Federation of America on behalf of Planned Parenthood Golden Gate and other Planned Parenthood affiliates; and
  • the American Civil Liberties Union, Wilmer Cutler Pickering Hale and Dorr LLP, the ACLU of Illinois, and the New York Civil Liberties Union on behalf of the National Abortion Federation and other doctors.

In 2004, all three courts struck down the law because it failed to protect women's health. Since then, three U.S. courts of appeals have affirmed the lower courts' decisions. On November 8, 2006, the U.S. Supreme Court heard the Center’s case, Gonzales v. Carhart, and Gonzales v. Planned Parenthood. The third case, National Abortion Federation v. Gonzales, is on hold until the Supreme Court rules in the other two cases.

3. Why is the abortion ban being challenged in court?
The law is being challenged for two reasons. First, the ban is so broad it would prohibit a wide range of abortions performed in the second trimester. Second, it would prohibit abortions that are safe and among the best to protect women's health. The law does not include an exception if the woman's health is at risk, as required by the Supreme Court's decisions on abortion law since Roe.

4. Have the courts covered this issue in the past?
The Center for Reproductive Rights argued a similar case (Stenberg v. Carhart) before the U.S. Supreme Court just seven years ago. At that time, the Court found a Nebraska law almost identical to the federal law to be unconstitutional for two important reasons:

  • The Nebraska ban was so broadly worded that it would have prevented doctors from performing procedures used in more than 90 percent of abortions in the second trimester. Thus, the court ruled, the Nebraska ban imposed an undue burden on a woman's constitutionally-protected right to choose abortion.
  • The Nebraska ban, like the federal ban, did not include a health exception to protect women. The majority opinion in Stenberg v. Carhart confirmed that when the state regulates abortion procedures, its paramount consideration must be a woman's health.

The 2003 Federal Abortion Ban suffers from these very same flaws.

5. If nothing has changed since the Stenberg ruling, how will the Court rule differently?
This case is about whether the Supreme Court will abide by established law and uphold protections for women’s health in laws on abortion or use this case as an opportunity to advance a conservative ideological agenda.

Abortion foes see the new Court – with two new Bush appointees – as a fresh opportunity to undermine abortion rights altogether and eventually strike down the Roe v. Wade decision.

This case is also about more than abortion. Even people who do not support abortion rights or care about abortion policy should be concerned that the Supreme Court might reconsider its decision in Stenberg v. Carhart. This means the Court may be willing to join the Administration and Congress in advancing a conservative ideology of interfering in individual rights and basic human freedoms – from interference in the Terri Schiavo case to limits on potentially life saving embryonic stem cell research, and now to overturn settled law protecting the health of women.

6. Who opposes this law?
Major medical associations are opposed to this ban, including the American College of Obstetricians and Gynecologists (ACOG), which represents more than 90 percent of all ob-gyn specialists in the U.S. ACOG says "the intervention of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous."

Other major medical organizations that have opposed federal bans on safe, medically-appropriate abortions include: American College of Nurse Practitioners; American Medical Student Association; American Medical Women's Association; American Nurses Association; American Public Health Association; Association of Reproductive Health Professionals; Association of Schools of Public Health; Association of Women Psychiatrists; California Medical Association; National Asian Women's Health Organization; National Association of Nurse Practitioners in Reproductive Health; National Black Women's Health Project; National Latina Institute for Reproductive Health; National Women's Health Network; Physicians for Reproductive Choice and Health; and the Rhode Island Medical Society.

7. What is a "partial-birth abortion?" Is this law about "late-term" or "thirdtrimester" abortions?
There is no medical procedure called a "partial birth abortion," nor is it found inmedical literature. It is a political term made up by extreme conservatives to confuse people. The federal ban defines the term "partial-birth abortion" so broadly that it would prohibit a wide range of abortions performed in the second trimester. Also the ban is not about third-trimester abortions. Forty states and the District of Columbia already ban third-trimester abortions except when the life or health of the woman is at stake. Instead, the broad language of the law would ban some early abortions, and it fails to include a health exception to protect women.

8. When do most abortions occur?
The overwhelming majority of abortions are performed in the first trimester of pregnancy. The Centers for Disease Control estimates that 58 percent of legal abortions occur within the first eight weeks of gestation, and 88 percent are performed within the first 12 weeks (based on the most recent data from 2000). Just over 10 percent are performed between 13 and 20 weeks. Less than one-half-of-one percent occur after 24 weeks.

9. What would it mean for women and their doctors if the Court upholds the law?
From a medical perspective doctors have said that, if the law is allowed to stand, it would severely limit their ability to provide their patients with the safest care available. Some have said that – because the law is so vague and could potentially cover all abortions after the 12th week – they would have to stop performing abortions after the first trimester or would retire. In effect, this would further reduce women’s access to medical care. As it stands now, eighty-seven percent of U.S. counties have no abortion provider.

From a legal perspective, if the Supreme Court allows limits on the techniques employed in abortion, it would open the door to sweeping bans on abortion procedures at the federal and state levels.