updated 7/8/2005 12:30:16 PM ET 2005-07-08T16:30:16

A federal appeals court on Friday upheld a ruling that the federal Partial-Birth Abortion Ban Act is unconstitutional.

The 8th U.S. Circuit Court of Appeals in St. Louis agreed that the ban, while containing an exception to save the life of the mother, is unconstitutional because it makes no such exception for the health of the woman. The court upheld an earlier decision by U.S. District Judge Richard Kopf of Lincoln, who heard one of three cases brought over the issue last year.

Court: Women's health must be protected
Kopf’s ruling followed decisions overturning the law by federal judges in New York and San Francisco. Those decisions also have been appealed and are expected by many legal experts to eventually reach the U.S. Supreme Court.

“When ‘substantial medical authority’ supports the medical necessity of a procedure in some instances, a health exception is constitutionally required,” Judge Kermit Bye of the 8th Circuit wrote in the opinion issued Friday. “In effect, we believe when a lack of consensus exists in the medical community, the Constitution requires legislatures to err on the side of protecting women’s health by including a health exception.”

President Bush signed the abortion ban in 2003, but it was not enforced because of the legal challenges.

The Justice Department had argued that the Partial-Birth Abortion Ban Act prohibits “one particular method of abortion that Congress, after nine years of hearings, found to be gruesome, inhumane, never necessary to preserve the health of women, and less safe than other readily available abortion methods.”

Ban said to be vague
The ban refers to a procedure doctors call “intact dilation and extraction,” or D&X. Opponents call it partial-birth abortion. During the procedure, generally performed in the second trimester, a fetus is partially removed from the womb and its skull is punctured.

Kopf said that the ban is vague and could be interpreted as covering more common, less controversial procedures, including “dilatation and evacuation,” or D&E, which is the most common method of second-trimester abortion.

A federal appeals court on Friday upheld a ruling that the federal Partial-Birth Abortion Ban Act is unconstitutional.

The ruling from the 8th U.S. Circuit Court of Appeals upheld an earlier decision by U.S. District Judge Richard Kopf of Lincoln, who heard one of three such cases last year.

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