Partial-birth abortions are a relatively rare but controversial and politically-charged abortion procedure in which a physician partially delivers an intact fetus, then intentionally causes its death before removing it completely.
The federal Partial-Birth Abortion Ban Act of 2003 states that a doctor who “knowingly performs a partial-birth abortion and thereby kills a human fetus” commits a crime punishable by imprisonment for up to two years. It defines “partial-birth abortion” as a procedure in which the doctor “delivers a living fetus” until some part of the fetus is “outside the body of the mother” and then “performs the overt act… that kills the partially delivered living fetus.” The law provides an exception where the woman’s life is in danger. Significantly, there is no broad exception where the procedure is deemed by the doctor to be in the interests of the health of the mother. Abortion opponents have claimed that such broad “health” exceptions are subject to abuse. The Act was upheld on April 18, 2007 by the United States Supreme Court in Gonzales v. Carhart. The Court held that the federal law was not void for vagueness, and that it did not impose a substantial obstacle for a woman seeking an abortion. The Court had previously struck down a more broadly-written partial-birth abortion law from Nebraska, in Stenberg v. Carhart. A key difference cited by the Court was that the Nebraska law was so broadly worded that it would have applied to standard D&E procedures as well as partial-birth abortions.
In the wake of the Gonzalez v. Carhart decision, some state legislatures have pushed similar legislation with three goals. These legislators want to ensure that the state ban is not unconstitutional under the Supreme Court’s two decisions. They want state and local law enforcement officials to be able to enforce the ban, since the federal law must be enforced by federal authorities. And finally they aim to enact stiffer penalties than the two years imprisonment under the federal law.