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Consumer Legal Issues 108th Congress 1st Session S3 AN ACT To prohibit the procedure commonly known as partial-birth abortion. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1 SHORT TITLE. This Act may be cited as the "Partial-Birth Abortion Ban Act of 2003" SEC. Rather than being an abortion procedurethat is embraced by the medical community, particularly among physicians who routinely perform other abortion procedures, partial-birth abortion remains a disfavored procedure thatis not only unnecessary to preserve the health of the mother, but in fact posesserious risks to the long-term health of women and in some circumstances, their lives. As a result, atleast 27 States banned the procedure as did the United States Congress which votedto ban the procedure during the 104th, 105th, and 106th Congresses.
would be the safest procedure" forpregnant women who wish to undergo an abortion. Thus, the Court struck down the State of Nebraska'sban on partial-birth abortion procedures, concluding that it placed an "undue burden" on womenseeking abortions because it failed to include an exception for partial-birth abortions deemed necessary to preserve the "health" of the mother. In reaching this conclusion, the Court deferredto the Federal district court's factual findings that the partial-birth abortion procedurewas statistically and medically as safe as, and in many circumstances safer than, alternative abortion procedures. However, the great weight of evidence presented at the Stenberg trialand other trials challenging partial-birth abortion bans, as well as at extensive Congressional hearings, demonstrates that a partial-birth abortionis never necessary to preserve 20the health of a woman, poses significant health risks to a woman upon whom the procedure is performed, and is outside of the standard of medical care. Despite the dearth of evidence in the Stenberg trial court record supporting the district court's findings, the United States Court of Appealsfor the Eighth Circuit and the Supreme Court refused to set aside the district court's factual findings because, under the applicable standard of appellate review, they were not "clearly erroneous". A finding of fact is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed".
Anderson v City of Bessemer City, North Carolina (470 US 564, 573 (1985)). Under this standard, "if the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently" (Id. Thus, in Stenberg, the United States Supreme Court was required to accept the very questionable findings issued by the district court judge the effect of which was to render null and void the reasoned factual findings and policy determinations of the United States Congress and at least 27 State legislatures. However, under well-settled Supreme Court jurisprudence, the United States Congress is not bound to accept the same factual findings that theSupreme Court was bound to accept in Stenberg under the "clearly erroneous" standard. Rather, the United States Congress is entitled to reach its own factual findingsfindings that the Supreme Court accords great deferenceand to enact legislation based upon these findings so long as it seeks to pursue a legitimate interest that is within the scope of the Constitution, and draws reasonable inferences based upon substantial evidence.
Katzenbach v Morgan (384 US 641(1966)), the Supreme Court articulated its highly deferential review of Congressional factual findings when it addressed the constitutionality of section 4 of the Voting Rights Act of 1965.
t was for Congress, as the branch that made this judgment, to assess and weigh the various conflicting considerations. It is not for us to review the congressional resolution of these factors. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did. There plainly was such a basis to support section 4 in the application in questionin this case."
v Federal Communications Commission (520 US 180 (1997) (Turner II)). At issue in the Turner cases was Congress' legislative finding that, absent mandatory carriage rules, the continued viability of local broadcast television would be seriously jeopardized''. The Turner I Court recognized that as an institution, "Congress is far better equipped than the judiciary to 'amass and evaluate the vast amounts of data' bearing upon an issue as complex and dynamic as that presented here" (512 US at 66566). Although the Court recognized that the deference afforded to legislative findings does not foreclose our independent judgment of the facts bearing on an issue of constitutional law,' " its "obligation to exercise independent judgment when First Amendment rights are implicated is not a license to reweigh the evidence de novo, or to replace Congress' factual predictions with 14our own. Rather, it is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence."
e owe Congress' findings deference in part because the institution is far better equipped than the judiciaryto "amass and evaluate the vast amounts of data" bearing upon' legislative questions," (Id.
Congress' findings an additional measure of deference out of respect for its authority to exercise the legislative power." Congress was informed by extensive hearings held during the 104th, 105th, and 107th Congresses and passed a ban on partial-birth abortion in the 104th, 105th, and 106th Congresses. These findings reflect the very informed judgment of the Congress that a partial-birth abortion is never necessary to preserve the health of a woman, poses serious risks to a woman's health, and lies outside the standard of medical care, and should, therefore, be banned. Those risks include, among other things: an increase in a woman's risk of suffering from cervical incompetence, a result of cervical dilation making it difficult or impossible for a woman to successfully carry a subsequent pregnancy to term; an increased risk of uterine rupture, abruption, amniotic fluid embolus, and trauma to the uterus as a result of converting the child to a footling breech position, a procedure which, according to a leading obstetrics textbook, "there are very few, if any, indications for . and a risk of lacerations and secondary hemorrhaging due to the doctor blindly forcing a sharp instrument into the base of the unborn child's skull while he or she is lodged in the birth canal, an act which could result in severe bleeding, brings with it the threat of shock, and could ultimately result in maternal death. There is no credible medical evidencethat partial-birth abortions are safe or are safer than other abortion procedures. No controlled studies of partial-birth abortions have been conducted nor have any comparative studies been conducted to demonstrate its safety and efficacy compared to other abortion methods. Furthermore, there have been no articles published in peer-reviewed journals that establish that partial-birth abortions are superior in any way to established abortion procedures. Indeed, unlike other more commonly used abortion procedures, there are currently no medical schools that provide instruction on abortions that include the instruction in partial-birth abortions in their curriculum. A prominent medical association hasconcluded that partial-birth abortion is "not an accepted medical practice," that it has "never been subject to even a minimal amount of the normal medical practice development," that "the relative advantages and disadvantages of the procedure in specific circumstances remain unknown," and that "there is no consensusamong obstetricians about its use". The association has further noted that partial-birth abortion is broadly disfavored by both medical experts and th...
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