A federal appeals court rejected the argument that a partial-birth abortion is 'never necessary to preserve the health of women,' as the ban states, and ruled that 'the Constitution requires legislatures to err on the side of protecting women's health.'

The court upheld an earlier decision by US District Judge Richard Kopf of Lincoln, who heard one of three cases brought over the issue last year.

Lack of Consensus

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 US 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.

Never Necessary to Preserve the Health of Women?

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."

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.