Judge Declares Partial Birth Abortion Ban Unconstitutional

On November 5, 2003, President George W. Bush took a moral stand by signing into law the Partial Birth Abortion Ban, which outlawed what amounts to the clinical execution of a partially delivered human fetus (see Harrub, 2003). On that day, the president stated: “For years, a terrible form of violence has been directed against children who are inches from birth, while the law looked the other way. Today, at last, the American people and our government have confronted the violence and come to the defense of the innocent child” (“President Bush Signs…,” 2003). On June 1, 2004, a United States judge failed in that “defense of the innocent child.”

The honorable judge Phyllis Hamilton, of U.S. District Court, Northern California District, ruled that the Partial Birth Abortion Ban was unconstitutional:

For all of the reasons discussed above, this court concludes that the Act is unconstitutional because it (1) poses an undue burden on a woman’s ability to choose a second trimester abortion; (2) is unconstitutionally vague; and (3) requires a health exception as set forth by the Supreme Court in Stenberg (Planned Parenthood v. Ashcroft, 2004, p. 117).

In the findings on the case, judge Hamilton referred not only to the undue burden it placed on the woman seeking an abortion, but to the doctor performing the abortion as well. Her Honor stated (after hearing the testimony):

A majority of the physicians who testified noted that because they “fear prosecution, conviction, and imprisonment,” the wide net cast by the Act could have and has already had the effect of impacting all previability second trimester abortion services that they provide to their patients (Planned Parenthood v. Ashcroft, p. 24).

According to judge Hamilton, the right of a doctor to perform abortions trumps the right of a child to life during its second trimester of gestation.

While this finding applies only to the approximately 900 Planned Parenthood clinics in the United States, and all abortion clinics in the city and county of San Francisco, it seems likely that similar cases in New York and Nebraska also will put injunctions on the Partial Birth Abortion Ban (“Judge Blocks…,” 2004; Planned Parenthood v. Ashcroft, p. 117). In her final footnote on the case, judge Hamilton stated that a “nationwide injunction may be appropriate…,” thus giving legal backing to future cases seeking a sweeping injunction against the ban.

Judge Hamilton, who was an appointee of President Clinton, has set a very sobering precedent. Not only is the right of the woman greater than that of the infant, but now the right of a doctor is greater than an infant’s. In his November 5 speech, President Bush stated:

In the debate about the rights of the unborn, we are asked to broaden the circle of our moral concern. We’re asked to live out our calling as Americans. We’re asked to honor our own standards, announced on the day of our founding in the Declaration of Independence. We’re asked by our convictions and tradition and compassion to build a culture of life, and make this a more just and welcoming society. And today, we welcome vulnerable children into the care and protection of Americans (“President Bush Signs…, 2003, emp. added).

On June 1, 2004, an American judge ruled that “care and protection” and “moral concern” mean nothing when applied to an unborn child. However, the wonderful work of God in an unborn child deserves every protection that the law can afford. As David wrote, “For You formed my inward parts; You covered me in my mother’s womb. I will praise you because I am fearfully and wonderfully made; marvelous are Your works, and that my soul knows very well” (Psalm 139:13-14, emp. added).

The Christians in this nation now wait to hear from the courts in Nebraska and New York. If those courts place injunctions on the Partial Birth Abortion Ban, then essentially there is no protection afforded the unborn child. The thing to do now is continue praying. Pray for the congress, the president, and the judges, that they will stand up for what is right, and uphold the morals upon which this country was founded.


Harrub, Brad (2003), “One Small Step for Man—One Giant Leap for Mankind,” [On-line], URL:

“Judge Blocks Partial-Birth Abortion Ban” (2004), [On-line], URL:,2933,121435,00.html.

Planned Parenthood v. Ashcroft (2004), U.S. Cir. Ct., Nor. CA Dist., [On-line], URL:

“President Bush Signs Partial Birth Abortion Ban Act of 2003” (2003), [On-line], URL:


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