The U.S. Congress first passed a federal ban on the gruesome procedure known as partial birth abortion in 1996, and again in 1997. Both times the Act was vetoed by then-President Bill Clinton . In 2003, Congress passed the Partial Birth Abortion Ban Act for the third time. It was signed by President Bush, and immediately challenged by abortion advocates.

This particular Act was written to overcome the objections of the Supreme Court when, in 2000, it struck down (by 5-4) the Nebraska ban in Stenberg v. Carhart , for being overbroad (the statutory language describing the banned procedure could be interpreted as including more, common procedures) and lacking a health exception (where lower court findings indicated disagreement on the medical necessity of the procedure). The 2003 Act banned the following procedure:

an abortion in which the person performing the abortion (A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and (B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.

On April 18, the Supreme Court in Gonzales v. Carhart held (5-4) that the Act banning the partial-birth abortion procedure described above is constitutional: the Act is not void for vagueness, does not impose an undue burden, and is not facially invalid.

In addressing the "void for vagueness" challenge, the Court held that the language describing the procedure was specific enough that an abortion provider would know exactly what was prohibited: it required delivery of a living fetus, to an "anatomical landmark" (head outside the mother's body, or baby's trunk past the navel outside the mother's body), an overt act to kill the child, which was intended by the abortion provider. Because the language was not overly broad, and could not be read to include other, common abortion procedures, the ban did not impose an undue burden on any woman seeking a late-term abortion (the presence of which would render the Act unconstitutional). Finally, the Court held that Act was not facially invalid, or considered "unconstitutional on its face," because it did not impose a substantial obstacle to late-term, previability abortions.

Writing for the majority, Justice Kennedy made some noteworthy comments about the government's interest in protecting human life, and the devastating effects of abortion:

•  Court precedent included the premise "that the government has a legitimate and substantial interest in preserving and promoting fetal life.

•  "The government may use its voice and its regulatory authority to show its profound respect for the life within the woman."

•  "Respect for human life finds an ultimate expression in the bond of love the mother has for her child.While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.Severe depression and loss of esteem can follow."

•  "Where it has a rational basis to act, and does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn."

The Congressional findings in the Act, which get deference in judicial proceedings, included the finding that partial birth abortions are never medically necessary. The American Medical Association said that Partial Birth Abortions were "not medically indicated," and "not good medicine." Therefore, while the Act contains a life of the mother exception "whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself," the Act does not contain a "health" exception.

In the Supreme Court's abortion jurisprudence, the "health" exception is so broad, that it includes mental health and emotional well-being.

The Court held that the absence of the health exception did not render the Act unconstitutional: "Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends.The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman's health, given the availability of other abortion procedures that are considered to be safe alternatives."

Justice Ginsburg wrote a stinging dissent, which she read from the bench, and which focused on the absence of a "health" exception in the Act: "Today's decision is alarming.for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health." But as the majority opinion pointed out, in light of the fact that safe abortion alternatives exist, "A zero tolerance policy would strike down legitimate abortion regulations, like the present one, if some part of the medical community were disinclined to follow the proscription. This is too exacting a standard to impose on the legislative power.to regulate the medical profession."

In the wake of the Supreme Court's decision, abortion advocates in Congress are gathering cosponsors for the reintroduction of the "Freedom of Choice Act," which would codify Roe v. Wade , and bar the government at any level from enacting any restriction on abortion.

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