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Court upholds abortion decision

LINCOLN, Neb. - 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.

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.

FRANKFORT, Ky. - A state judge Friday upheld the use of lethal injection in Kentucky, saying it was not cruel and unusual punishment.

Franklin Circuit Judge Roger Crittenden said the method of execution should be changed to rule out one painful step. Officials for the state say they plan to challenge that part of the ruling on appeal.

"The execution protocol adopted by the Commonwealth of Kentucky, with one exception, complies with the constitutional requirements against cruel and unusual punishment," Crittenden wrote.

The case was brought by condemned prisoners Thomas Clyde Bowling and Ralph Baze. They argued that Kentucky's process of administering the lethal cocktail to death row inmates violated the Kentucky and U.S. constitutions, which prohibit cruel and unusual punishment.

While upholding lethal injection, the judge said the state should not be allowed to administer the fatal drugs through an intravenous catheter stuck into the prisoner's jugular vein, in the neck, if no suitable veins can be found in the arms or legs.

He said it was unconstitutionally cruel and should be removed from the process.

Corrections Department attorney Jeff Middendorf said the agency would ask a higher court to allow the intravenous insertion into the neck as a "backup" plan. Still, Middendorf said the overall ruling validated the state's lethal injection process.

"This is a win for the victims' families today who have waited for years," Middendorf said. "And this is just one step closer to making sure that the lawful sentence in this commonwealth is carried out."

Assistant Attorney General David Smith said the ruling moves both men toward their executions. Prosecutors in the attorney general's office would ask Gov. Ernie Fletcher for death warrants "at the appropriate time," Smith said.

[Last modified July 9, 2005, 01:02:12]