Partial-Birth Abortion Ban Act of 2003

The Act, introduced in the first session of the 108th Congress (2003-2004), outlaws a specific late-term abortion procedure referred to as intact dilation and extraction by the American Medical Association; the Act does not refer to such a medical procedure by name, instead using the legal term coined by a pro-life politician in 1995, "partial birth abortion."

The medical procedure of intact dilation and extraction, where the fetus is removed intact, is considered by the American College of Obstetricians and Gynecologists as the “safest and offers significant benefits for women suffering from certain conditions that make the potential complications of non-intact D&E especially dangerous.” Opponents to the procedure point to the method   Further, according to the American Academy of Pediatrics, the lower limits of fetal viability (which is the ability of the fetus to survive outside of the womb) at around 22-23 weeks, which occurs in the middle of the second trimester (weeks 18-26) when the procedure is traditionally used. While there is an exemption if a woman's life is at risk, objections to this statute are primarily because there is no exemption if the health of a woman is at risk.

As prescribed by the act, "any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both." The Act passed both chambers of the 108th Congress and was signed in to law on November 5, 2003.

House
H.R.760 was introduced by Rep. Steve Chabot (R-Ohio) on February 13, 2003. It was immediately referred to the House Committee on the Judiciary, of which Chabot was a member. The Committee reported on the bill on April 3, 2003, and was put to vote on June 4, 2003. H.R.760 passed with a vote of 282-139. It was tabled later that day in favor of conference on S.3 in the Senate, which had passed earlier in March.

Senate
S.3 was introduced by Sen. Rick Santorum (R-Pa.) on February 14, 2003. Sen. Barbara Boxer’s (D-Calif.) motion to commit the bill to the Senate Committee on the Judiciary on March 12, 2003 failed. The bill was subsequently put to a vote on March 13, 2003 where it passed with a vote of 64-33. This version of the bill later went on to conference. The Act passed both chambers of the 108th Congress and was signed in to law on November 5, 2003.

Conference and passage
On September 22, 2003, the Senate designated Sens. Orrin Hatch (R-Utah), Mike DeWine (R-Ohio), Rick Santorum (R-Pa.), Dianne Feinstein (D-Calif.), and Barbara Boxer (D-Calif.) as conferees.

On September 25, 2003, Speaker of the House Dennis Hastert (R-Ill.) appointed Reps. Steve Chabot (R-Ohio) and Zoe Lofgren (D-Calif.) as conferees.

The Conference Report was filed on September 30, 2003.

House
The House voted on October 2, 2003, with a vote of 281-142 on the passage of the report.

Senate
The Senate voted on October 21, 2003, with a vote of 64-34 on the passage of the report.

President
On November 5, 2003, the President signed it and it became Public Law No: 108-105.

Supreme Court challenge
The Partial-Birth Abortion Ban Act was signed into law by President George W. Bush on November 5, 2003, and was immediately challenged. Three U.S. district courts, the Northern District of California, Southern District of New York, and the District of Nebraska declared the law unconstitutional. U.S. District Judge Richard Kopf in Nebraska found the law unconstitutional in ‘’Carhart v. Ashcroft’’. The federal government appealed the district court ruling, bringing Carhart v. Gonzales before a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit. The panel unanimously upheld the ruling of the Nebraska court on July 8, 2005. Finding that the government offered no "new evidence which would serve to distinguish this record from the record reviewed by the Supreme Court in Stenberg," they held that the Partial-Birth Abortion Ban Act is unconstitutional because it lacks an exception for the health of the woman. Attorney General Alberto Gonzales petitioned the U.S. Supreme Court to review the Eighth Circuit decision on September 25, 2005. The Supreme Court agreed to hear the Carhart case on February 21, 2006.

The Supreme Court's five-to-four decision, which was handed down on April 18, 2007, upheld the federal ban as not imposing an undue burden on the due process right of women to obtain an abortion, “under precedents we here assume to be controlling,” such as the Court's prior decisions in Roe v. Wade and related cases. The law does not ban abortions, but rather the procedure generally used in the second trimester of pregnancy. Justice Kennedy delivered the majority opinion, while Justice Ruth Bader Ginsburg dissented contending that the ruling ignored Supreme Court abortion precedent. Justice Ginsburg sought to ground the Court's abortion jurisprudence based on concepts of personal autonomy and equal citizenship rather than the Court's previous privacy approach: "Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature.