Legislative and Judicial History
The GOP led Congress first passed similar laws banning "partial-birth abortion" in December 1995, and again October 1997, but they were vetoed by President Bill Clinton.
In the House, the final legislation was supported in 2003 by 218 Republicans and 63 Democrats. It was opposed by 4 Republicans, 137 Democrats, and 1 independent. Twelve members were absent, 7 Republicans and 5 Democrats. In the Senate the bill was supported by 47 Republicans and 17 Democrats. It was opposed by 3 Republicans, 30 Democrats, and 1 independent. Two Senators were absent, Kay Bailey Hutchison (R-Tx.), a supporter of the bill, and John Edwards (D-NC), an opponent of the bill.
The only substantive difference between the House and Senate versions was the Harkin Amendment expressing support for Roe v. Wade. A House-Senate conference committee deleted the Harkin Amendment, which therefore is absent from the final legislation. On November 5, 2003, after being passed by both the House and the Senate, the bill was signed by President George W. Bush to become law.
The constitutionality of the law was challenged immediately after the signing. Three different U.S. district courts declared the law unconstitutional. All three cited the law's omission of an exception for the health of the woman (as opposed to the life of the woman), and all three decisions cited precedent set by Roe v. Wade (1973) and Stenberg v. Carhart (2000). The federal government appealed the district court rulings, which were then affirmed by three courts of appeals. The Supreme Court agreed to hear the Carhart case on February 21, 2006, and agreed to hear the companion Planned Parenthood case on June 19, 2006.
On April 18, 2007 the Supreme Court in a 5-4 decision, Gonzales v. Carhart, held that the statute does not violate the Constitution. Justice Anthony Kennedy wrote for the majority which included Justices Samuel Alito, Clarence Thomas, Antonin Scalia, and Chief Justice John Roberts. Justice Ruth Bader Ginsburg wrote the dissent which was joined by Stephen Breyer, David Souter, and John Paul Stevens. Kennedy's majority opinion argued that the case differed from Stenberg v. Carhart, a 2000 case in which the Supreme Court struck down a state ban on "partial-birth abortion" as unconstitutional, in that the Partial Birth Abortion Act defined the banned procedure more clearly. In dissent, Ginsburg argued that the decision departed from established abortion jurisprudence, and that lack of a health exception "jeopardizes women’s health and places doctors in an untenable position." The replacement of O'Connor by Alito was identified as a key difference between the 5-4 decision against the Nebraska law in Stenberg and the 5-4 support for the abortion ban in Gonzalez.
Read more about this topic: Partial-Birth Abortion Ban Act
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