Department of Justice Seal Department of Justice
(202) 514-2007
TDD (202) 514-1888


“Today, the U.S. District Court for the Southern District of New York granted a temporary restraining order barring enforcement of the Partial Birth Abortion Ban Act, passed overwhelmingly by Congress. The Justice Department opposed the injunction, and will continue to strongly defend the law prohibiting partial birth abortions using every resource necessary. As President Bush pledged yesterday, ‘By acting to prevent this practice, the elected branches of our government have affirmed a basic standard of humanity, the duty of the strong to protect the weak. The wide agreement amongst men and women on this issue, regardless of political party, shows that bitterness in political debate can be overcome by compassion and the power of conscience. And the executive branch will vigorously defend this law against any who would try to overturn it in the courts.’”

Excerpts from a Justice Department brief opposing a temporary restraining order:

The Partial-Birth Abortion Ban Act of 2003 “bans a late term abortion procedure that Congress found is gruesome, inhumane, never medically necessary and, indeed, poses serious health risks to the mother. The Act bars the killing of a living fetus that is deliberately and intentionally vaginally delivered until it is largely outside the body of the mother - either head first or, in the breech position, to at least the navel - and, at that point, killed before delivery is completed. The banned procedure is one in which a living fetus is mere inches from a completed birth, and an autonomous existence, before it is killed at the last moment.”

“Congress found, after extensive hearings dating back to 1995, that this method of killing a living fetus- performed on fetuses that are at or near viability- appropriates and perverts the birth process, blurs the line between abortion and infanticide, and confuses the medical, legal, and ethical duties of physicians to preserve life. Congress also found that partial-birth abortion imposes severe pain on the fetus.”

“Congress specifically found that partial-birth abortion poses serious risks of its own to the health of a woman undergoing the procedure. Those risks include, among other things, cervical incompetence, potentially hindering a woman’s ability to carry a subsequent pregnancy to term, and a risk of lacerations and severe hemorrhaging from a doctor forcing a sharp instrument into the base of the skull of the fetus while it is lodged in the birth canal. Additional risks include that of uterine rupture, abruption, amniotic fluid embolus, and trauma to the uterus as a result of any conversion of the fetus to a footling breech position...”

“When the physician begins this procedure, she appears to be acting in the role of an obstetrician assisting a live delivery, in which she has a duty to care for both the fetus and the woman. Indeed, ‘at this juncture, the fetus is merely inches from being delivered.’ HJC 3/25/03 at 10 (Testimony of Dr. Mark Neerhof). Suddenly, however, the physician switches roles and kills the fetus, typically by stabbing the base of the fetal skull with scissors, enlarges the opening, and suctions out the skull contents, killing the fetus. The physician acts directly against the physical life of a fetus whom she has previously delivered, in large part, out of the body of the mother.”

The “contention that the Act should be enjoined quickly based on the Supreme Court’s decision [regarding] a Nebraska law banning partial-birth abortion, is meritless... The scope of the restriction enacted by Congress is narrow: it applies to one method of abortion, performed on a living fetus deliberately delivered to a point that is outside of the mother’s body before it is killed by a separate act. This procedure is markedly different from, and cannot reasonably be compared to, other common abortion methods, which are characterized by either suctioning the womb, dismembering the fetus, or inducing labor.”

“Over the course of eight years, Congress heard substantial testimony from respected medical professionals who provide care to pregnant women suffering from the same serious medical conditions that plaintiffs argue require a partial-birth abortion. These physicians uniformly agreed that a partial-birth abortion is never necessary to advance the health or life of women.”

Specific findings of Congress:

Congress found that a “moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion... is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.” See Act, § 2(1). Congress determined that “[r]ather than being an abortion procedure that is embraced by the medical community, particularly among physicians who routinely perform other abortion procedures, partial-birth abortion remains a disfavored procedure that is not only unnecessary to preserve the health of the mother, but in fact poses serious risks to the long-term health of women and in some circumstances, their lives.” See Act, § 2(2).

Congress also found that partial-birth abortion “confuses the medical, legal, and ethical duties of physicians to preserve and promote life, as the physician acts directly against the physical life of a child, whom he or she had just delivered, all but the head, out of the womb, in order to end that life.” Congress also found, “Partial-birth abortion thus appropriates the terminology and techniques used by obstetricians in the delivery of living children - obstetricians who preserve and protect the life of the mother and the child - and instead uses those techniques to end the life of the partially-born child.” See Act, § 2(14)(J).

“[U]nborn infants at this stage can feel pain when subjected to painful stimuli and that their perception of this pain is even more intense than that of newborn infants and older children when subjected to the same stimuli. Thus, during a partial-birth abortion procedure, the child will fully experience the pain associated with piercing his or her skull and sucking out his or her brain.” See Act, § 2(14)(M).

Congress concluded that the “gruesome and inhumane nature of the partial-birth abortion procedure and its disturbing similarity to the killing of a newborn infant promotes a complete disregard for infant human life that can only be countered by a prohibition of the procedure.” See Act, § 2(14)(L).