Although the partial birth abortion ban was signed into law a while ago, new questions have been brought up on the ban.

Recently, 3 federal judges have ruled the ban unconstitutional. source

Is the abortion ban unconstitutional?

"Is it unconstitutional" or "will it be ruled unconstitutional", that is the question.

The answer is: anything that gets between a doctor and her patient is overstepping the bounds of the federal government. As such, it violates the basic premise of the constitution, which is that everything not enumerated in it is left to the states to handle. Not sure that this qualifies for an exemption to that rule.

I think Congress overstepped their bounds and will lose this round. But I also think that as long as one party controls both the legislative and the executive branches, they'll be back for another round soon enough.

As far as I can tell, this particular law is being held to be unconstitutional by judges for a reason which comes up a lot in tests of constitutionality. It is just too vague. Laws dealing with everything from loitering to pornography have been declared unconstitutional for this very reason. The vagueness of a law is held to violate the right of due process.

Take a look at this guide to state laws that banned "partial-birth" abortion. (This is from 1998, so it's out of date, but it still makes my point.)

The State "Partial-Birth Abortion" Bans: Enjoined in the Courts

Of the cases listed, you'll see that the most common reason for overturning a law of this type was vagueness.

To answer the question offered for debate, the current federal law which attempts to ban "partial-birth" abortion is, indeed, unconstititutional, for the reason of vagueness. It would seem possible to craft a federal law which would be very specific about the procedures it would ban, but there doesn't seem to be much effort to do so. If I had to guess, I would say that this is because the "partial-birth" abortion ban is just one move in a chess game, with the goal being to topple Roe v. Wade. Personally, I would support a ban on abortion during the very late stages of pregnancy, with appropriate exceptions (life of the mother, severe health consequences for the mother, the impossibility of the fetus surviving outside the womb, etc.) Such a ban, of course, would only effect a tiny percentage of abortions, so the whole controversy would still be up in the air.

Before I begin, let me register my agreement with amf and his strict constructionist interpretation of the issue.

That said, I'm worried by the reason Kopf rules against the Act. I haven't been able to find this case online - but judging by the AP article and the text of the previous ruling against the PBABA (here), it seems the courts are taking issue with the fact that the law provides no exception to preserve the health of the would-be mother. There is no Constitutional guarantee to health, least of all at the expense of what reasonable people can call a human life. This decision doesn't stop the infringement of Federal government into the affairs of the states; it merely trades one form for another.

So If I understand you correctly, individual States can ban abortion (Constitutionally), but not the Federal Government. In which State is abortion illegal?

Rubbish.

We, as a society, regulate the relationship that a doctor enjoys with his patients all the time. We regulate the type and dosage of medications, we regulate the nature, environment, and context of the relationship, we regulate the types of medicine that may be practiced with a state-issued license. We regulate the course of action for terminally-ill patients. The regulations heaped and piled on to a physician and his staff are legion.

For whatever reason, the Supreme Court has elected to not make the question of abortion a state issue. Employing judicial fiat to create an implied right in the Constitution to kill a fetus stripped the states of any right to regulate this issue themselves, as there is now a right to kill that child under the federal constitution, and the states may now only regulate the action within the confines of the federally guaranteed minimums.

Written into the court decisions and the collective conscience of our country is the idea that there absolutely must be the option to kill the fetus when the mother's own life is put at-risk. Speaking as a husband of a woman who nearly lost his wife in childbirth, I can say without guilt that I would never support a legal requirement that did not provide for that option.

However, medical science and the AMA in testimony before Congress on the PBABA have revealed that the "barbaric" (quoting the judge from the NY case) practice of delivering the baby, inserting essentially scissors into the back of its skull, and vacuuming out its brain is not required to preserve the health of the mother.

Incidentally, the child, unmedicated, feels what one expert described as "severe and excruciating pain." Dr. Kanwaljeet Ananad, testifying in the CA partial-brith abortion case. The child, at the time of his or her death, spasms in pain and extends his or her arms rigidly outward for a few moments before going completely limp. His skull is then collapsed, and his brain removed.

The AMA has called such procedures "bad medicine" and adopted unanimously-approved resolutions to forbid such procedures. However, despite the urgings of the nations' physicians, the pro-abortion groups in this country continue to successfully argue for "health exceptions" to such bans, even though they are not necessary.

I think that is the crux of the discussion.

I believe the law to be constitutional. It specifically holds doctors accountable, not women seeking abortions. It allows doctors an opportunity before their state medical board to defend their action if they believe they acted solely to save the life of a pregnant woman.

This law is written to be rejected by the courts. Its been overturned or vetoed in previous versions for the same reason every time: failure to protect the health of the mother.

Frankly, I believe those advocating this legislation and knowing it will not pass constitutional muster are revisiting it time and time again for one simple reason, to keep the pro-life lobby at the polls. Without it, apathy over the persistence of the abortion right these 32 years will keep them at home for lack a rallying point. Quite simply, Bush and other Republican candidates can't win without the pro-life demographic turning out in droves.

Doc

Does it really matter if its Constitutional?
Simply put, It is MY body! Who else should be allowed to decide what happens to it?
This issue covers a whole lot of what is controversial, such as euthanaisa.
I violently resent the idea that a government or any other body of people--christians, muslims, or any other type of spiritchaser-- should be able to decide what I do with my own person.

Well, as the topic for the discussion is whether a partial-birth abortion ban is Constitutional, and we're discussing this in the "Constitutional Debate" forum, my supposition is that yes, for purposes of this discussion, it matters whether it is Constitutional or not.

Arguments that this is "my body only!" and that society does not have any sort of counter-balanced right to regulate the practice of partial-birth abortion are nearsighted and reactionary.

You have to realize, and I think most people do, that at some point that baby inside the mother's body is a person and cannot have their life terminated without due process of law. No one may be derived of life, liberty or property without such due process. Where is the due process afforded to that child?

Since we are talking only on partial-birth abortion procedures, we're talking about children that are (99% of the time) capable of independent survival, provided the proper care. The procedures used to kill these children are described by judges, physicians, and other professionals as "barbaric" and "bad-medicine." Current jurisprudence has created a right to kill these babies under certain conditions. This debate is about simply one of those conditions.

As a coda, I do not appreciate your perjorative label of people who believe in deity as "spiritchasers." Can you not accept that others may hold differing religious views without demeaning them? Such tolerance...