Statement of the American Civil Liberties Union of Northern California


For Immediate Release: October 11, 2003

Congress has passed, and President Bush has agreed to sign, the first-ever federal criminal ban on safe, medically necessary abortion procedures. This law, the so-called “Partial Birth Abortion Act of 2003,” jeopardizes women’s health and violates women’s fundamental constitutional rights.

Just three years ago, the United States Supreme Court struck down a similar Nebraska law, ruling than the ban was unconstitutional because it criminalized a broad range of abortion procedures and contained no exception for procedures necessary to protect a woman’s health. (Stenberg v. Carhart, 2000.) Congress simply defied the Supreme Court in drafting the new federal ban, which suffers from the identical constitutional flaws.

Despite its deceptive “partial birth abortion act” title, the federal law bans far more than a single procedure late in pregnancy: the language is so broad that it criminalizes safe and common medical procedures that doctors use to terminate 95% of pregnancies after the first 12 weeks. The federal ban also blocks doctors from choosing procedures that may offer the best chance of protecting their patients’ health. The Supreme Court established 30 years ago in Roe v. Wade in 1973, and reaffirmed in the 2000 Stenberg v. Carhart case, that in regulating abortion the government may never endanger women’s health or interfere with women’s childbearing decisions. The new federal ban does both.

California has consistently refused to enact a similar law banning safe abortion procedures. In its Reproductive Privacy Act, a 2002 bill codifying Roe v. Wade principles, the state allows abortions until fetal viability, and whenever necessary to preserve a woman’s health. The law declares as our state’s public policy that “every individual possesses a fundamental right of privacy with respect to personal reproductive decisions,” and that “every woman has the fundamental right to choose to bear a child or to choose and to obtain an abortion.” California’s Constitution includes an express right to privacy that protects all women’s childbearing decisions from government intrusion.

It is ironic that the federal administration, which repeatedly expresses its support for smaller government and state’s rights, would be the first to pass a criminal abortion law. The Act tramples on this state’s autonomy in an area of great importance and, more seriously, intrudes on intimate personal family medical decisions.