Federal Government Supports Ohio Partial-Birth Abortion Ban

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The United States Department of Justice is encouraging the courts to uphold an Ohio law banning Partial Birth Abortion.

Ohio was the first state to pass a law banning Partial Birth Abortion -- referred to as "brain suction abortion" in that first attempt -- but it was struck down by federal Judge Walter Rice as "unconstitutional". So the legislature revised the law to answer the judge's objections. The same judge declared the new law unconstitutional. Ohio is appealing this decision to a higher court. (As of this writing: May 2002.)

In a move that appeared to surprise almost all observers, the Department of Justice took a stand in favor of Ohio's law. DOJ filed an "amicus brief": a paper giving legal arguments why the court should rule one way or the other.

In surprisingly blunt language, the DOJ brief charges that Judge Rice made "numerous errors" and that his conclusions "cannot be correct". Its key argument is that it is a well-established principle that if a court sees a potential problem with a law, it is supposed to interpret the language of the law in a way that gives it the benefit of the doubt. But, the DOJ says, "The district court erred in straining so hard, not to make the Ohio statute constitutional, but to make it unconstitutional."

Specifically, Rice's primary justification for striking down the law was that the Supreme Court has said that any law restricting abortion must include an exception in cases where it is "necessary" to defend the mother's life or health. The Ohio law contained such an exception, but Rice said that it was inadequate.

In a case that specifically dealth with Partial Birth Abortion, the Supreme Court said that it must be allowed, "where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Ohio's law said that it would be allowed where "necessary, in reasonable medical judgment, to preserve the life or health of the mother". The Supreme court defined medical necessity as a "condition which ... so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function". The Ohio law defined medical necessity as a "medically diagnosed condition that so complicates the pregnancy of a woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function."

The DOJ brief finds it amazing that Rice could say that Ohio's law did not meet the requirements set by the Supreme Court, when "the Ohio statute parrots applicable constitutional requirements almost verbatim". They go on to say, "The Ohio statute is thus facially constitutional for the simple reason that it is virtually a carbon-copy of provisions that the Supreme Court already has held are constitutional."

The Department of Justice's analysis of Rice's argument said, "The district court held that a partial birth abortion is 'necessary,' as that term is used [by the Supreme Court], whenever it is marginally safer than other forms of abortion. At the same time, it held that a partial birth abortion is 'necessary,' as that term is used in the Ohio statute, only when it is absolutely necessary to preserve life or health." In other words, he can only justify his decision by unilaterally declaring that when the Supreme Court used the word "necessary" they meant something totally different from what the Ohio legislature meant when they used exactly the same word in an almost-identical sentence.

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Posted 19 May 2002.

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