In a 5-4 vote, the Seventh Circuit Court of Appeals in Chicago on October 26 upheld the constitutionality of laws in Illinois and Wisconsin that criminalize a late-term abortion procedure its opponents call "partial birth." This marked the first time a federal appeals court has upheld a ban on the procedure. The 7th Circuit decision conflicts with a September decision by a federal appeals panel for the 8th Circuit, which deemed similar laws in Nebraska, Arkansas and Iowa unconstitutional. Also in September, however, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued a two sentence order putting aside a lower court's decision that found Virginia's "partial-birth abortion" law unconstitutional. The 4th Circuit decision cleared the way for the Virginia ban to be enforced until the full Fourth Circuit court makes a final decision.
The contradictory rulings will most likely be resolved by the U.S. Supreme Court, although some legal experts say the Court could deny review because the Wisconsin and Illinois laws have not yet been applied to actual cases. If the court takes the case, University of Minnesota law professor Suzanna Sherry said the justices will "answer some interesting questions about how abortion statutes have to be crafted ... in terms of their specificity and in terms of their exceptions." This would be the first time in seven years that the court has addressed the abortion issue. In 1992 the Court narrowly affirmed a woman "has a constitutional right to end a pregnancy."
The majority opinion in the 7th Circuit decision declared that the bans "do not violate a woman's right of privacy, nor are they an undue burden on a woman deciding whether to end a pregnancy." However, the minority opinion, by Chief Justice Richard Posner, charged that the laws would discourage doctors from performing other abortion procedures that are not supposed to be covered by the ban. Posner's opinion maintained that "it is extremely difficult, indeed probably impossible, to distinguish a partial-birth abortion from the methods of abortion that are conceded to be privileged." The majority opinion did say that enforcement of the bans should be delayed until lower courts have reviewed individual situations to ensure that the ban is not being applied to other abortion procedures.
An October 28 editorial in the New York Times called the decision a "serious assault on the reproductive freedom guaranteed women under Roe v. Wade," and charged that the court failed to consider the practical impact of the statutes in deterring doctors from performing abortion procedures that are supposed to be constitutionally protected. The editorial went on to assert that the decision "has at least crystallized the idea that this fight is about far more than a single late-term abortion procedure. It is about the continuing vitality of the Supreme Court's decision in Roe to keep politicians from interfering with what should remain women's private medical decisions."
--- Sources: Kaiser Family Foundation and Center for Reproductive Law and Policy