Abortion: Legislative Response Page: 15 of 19
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IB95095
On November 5, 2003, the President signed S. 3, the Partial-Birth Abortion Ban Act of
2003 (P.L. 108-105).2 The Senate initially passed S. 3 on March 13, 2003 by a vote of 64-33.
H.R. 760, a companion measure to S. 3, was passed by the House on June 4, 2003 by a vote
of 282-139. Shortly after passage of H.R. 760, pursuant to H.Res. 257, the language of S.
3 was struck, and the provisions of H.R. 760 were inserted into the measure. On September
17, 2003, the Senate voted 93-0 to reject the House amendment to S. 3. The Senate's vote
moved the two measures to conference. On September 30, 2003, a House-Senate conference
committee agreed to report a version of the bill that was identical to the House-passed
measure. The House approved H.Rept. 108-288, the conference report for the Partial-Birth
Abortion Ban Act of 2003, by a vote of 281-142 on October 2, 2003. The Senate agreed to
the conference report by a vote of 64-34 on October 21, 2003.
In general, the act prohibits physicians from performing a partial-birth abortion except
when it is necessary to save the life of a mother whose life is endangered by a physical
disorder, physical illness, or physical injury, including a life-endangering physical condition
caused by or arising from the pregnancy itself. Physicians who violate the act are subject to
a fine, imprisonment for not more than two years, or both.
Although the U.S. Supreme Court has held that restrictions on abortion must allow for
the performance of an abortion when it is necessary to protect the health of the mother, and
in 2000, struck down a state partial-birth abortion law on such grounds, the act does not
include such an exception. In his introductory statement for the act, Senator Rick Santorum
discussed the measure's lack of a health exception.3 He maintained that an exception is not
necessary because of the risks associated with partial-birth abortions. Senator Santorum
insisted that congressional hearings and expert testimony demonstrate "that a partial birth
abortion is never necessary to preserve the health of the mother, poses significant health risks
to the woman, and is outside the standard of medical care."4
Within two days of the signing of the act, federal courts in Nebraska, California, and
New York blocked its enforcement.5 Permanent injunctions have since been issued by three
courts. In Planned Parenthood v. Ashcroft, 320 F.Supp.2d 957 (N.D. Cal. 2004), a federal
district court in San Francisco found that the act is unconstitutional because it poses an undue
burden on a woman's ability to choose a second trimester abortion, is unconstitutionally
vague, and impermissibly lacks an exception for preserving the health of the mother.
In National Abortion Federation v. Ashcroft, 330 F.Supp.2d 436 (S.D. N.Y. 2004), a
federal district court in New York concluded that the act is unconstitutional based simply on
its failure to include an exception to preserve the health of the mother. In discussing the
level of deference owed to Congress's findings, the court observed that it must ascertain
"whether Congress reasonably determined, based on substantial evidence, that there is no
significant body of medical opinion believing the procedure to have safety advantages for
some women." Id. at 488. Given the lack of consensus in the medical community over
2 See note 1.
3 149 Cong. Rec. S2523 (daily ed. Feb. 14, 2003) (statement of Sen. Santorum).
4 Id.
5 Abortion Ban Blocked Again, Wash. Post, Nov. 7, 2003, at A2.CRS-12
04-05-05
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Lewis, Karen J.; Shimabukuro, Jon O. & Ely, Dana. Abortion: Legislative Response, report, April 5, 2005; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc820435/m1/15/?rotate=0: accessed July 17, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.