In 2003, the Partial Birth Abortion Ban Act was enacted. The Act authorizes fines and jail terms of up to two years for any doctor who performs a partial birth abortion. A partial birth abortion is defined as an abortion in which the baby is delivered past the baby's navel outside the body of the mother or after the entire fetal head is outside the body of the mother. Most partial birth abortions are performed between 20 and 26 weeks.
The United States Supreme Court established, by way of caselaw, that the government could not place an undue burden on a woman's right to terminate a non-viable fetus.
Controversy Over the Constitutionality of the Act
It is argued that the Act places an undue burden on the woman's right to terminate a non-viable fetus. It is contended by many constitutional experts that the Act fails to provide a narrow and definitive definition of the prohibited procedure. Further, it is argued that the Act fails to provide an exception that would permit the procedure to be used when it would be in the best interests of the mother's health.
Proponents of the Act argue that the Act is constitutional and second trimester abortions should not be permitted under any circumstances. Proponents argue that partial birth abortions are gruesome and inhumane. They further argue that the vast majority of babies killed during partial birth abortions are alive until the end of the procedure.
Current State of the Law
Numerous district courts issued temporary restraining orders that prohibited the United States Justice Department from enforcing the provisions set forth in the Act. However, the United States Supreme Court found that the Act was constitutional, not void for vagueness, did not impose an undue burden from any overbreadth, and was not invalid on its face. In response to the argument that the Act imposed an undue burden on the women's right to chose, the Supreme Court found the Act was not invalid as there was uncertainty over whether the barred procedure was ever necessary to preserve a woman's health because there were other there were other abortion procedures that were considered to be safe alternatives.
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