Partial-Birth Abortion Ban Act of 2003
PL 108-105 (S.3), enacted 11/05/2003

117 STAT. 1201
PUBLIC LAW 108–105—NOV. 5, 2003
Public Law 108–105
108th Congress
An Act
To prohibit the procedure commonly known as partial-birth abortion.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Partial-Birth Abortion Ban Act
of 2003’’.
SEC. 2. FINDINGS.
The Congress finds and declares the following:
(1) A moral, medical, and ethical consensus exists that
the practice of performing a partial-birth abortion—an abortion
in which a physician deliberately and intentionally vaginally
delivers a living, unborn child’s body until either the entire
baby’s head is outside the body of the mother, or any part
of the baby’s trunk past the navel is outside the body of the
mother and only the head remains inside the womb, for the
purpose of performing an overt act (usually the puncturing
of the back of the child’s skull and removing the baby’s brains)
that the person knows will kill the partially delivered infant,
performs this act, and then completes delivery of the dead
infant—is a gruesome and inhumane procedure that is never
medically necessary and should be prohibited.
(2) Rather than being an abortion procedure that is
embraced by the medical community, particularly among physi-
cians who routinely perform other abortion procedures, partial-
birth abortion remains a disfavored procedure that is not only
unnecessary to preserve the health of the mother, but in fact
poses serious risks to the long-term health of women and in
some circumstances, their lives. As a result, at least 27 States
banned the procedure as did the United States Congress which
voted to ban the procedure during the 104th, 105th, and 106th
Congresses.
(3) In Stenberg v. Carhart, 530 U.S. 914, 932 (2000), the
United States Supreme Court opined ‘‘that significant medical
authority supports the proposition that in some circumstances,
[partial birth abortion] would be the safest procedure’’ for preg-
nant women who wish to undergo an abortion. Thus, the Court
struck down the State of Nebraska’s ban on partial-birth abor-
tion procedures, concluding that it placed an ‘‘undue burden’’
on women seeking abortions because it failed to include an
exception for partial-birth abortions deemed necessary to pre-
serve the ‘‘health’’ of the mother.
18 USC 1531
note.
18 USC 1531
note.
Partial-Birth
Abortion Ban Act
of 2003.
Nov. 5, 2003
[S. 3]
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117 STAT. 1202
PUBLIC LAW 108–105—NOV. 5, 2003
(4) In reaching this conclusion, the Court deferred to the
Federal district court’s factual findings that the partial-birth
abortion procedure was statistically and medically as safe as,
and in many circumstances safer than, alternative abortion
procedures.
(5) However, substantial evidence presented at the
Stenberg trial and overwhelming evidence presented and com-
piled at extensive congressional hearings, much of which was
compiled after the district court hearing in Stenberg, and thus
not included in the Stenberg trial record, demonstrates that
a partial-birth abortion is never necessary to preserve the
health of a woman, poses significant health risks to a woman
upon whom the procedure is performed and is outside the
standard of medical care.
(6) Despite the dearth of evidence in the Stenberg trial
court record supporting the district court’s findings, the United
States Court of Appeals for the Eighth Circuit and the Supreme
Court refused to set aside the district court’s factual findings
because, under the applicable standard of appellate review,
they were not ‘‘clearly erroneous’’. A finding of fact is clearly
erroneous ‘‘when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed’’. Ander-
son v. City of Bessemer City, North Carolina, 470 U.S. 564,
573 (1985). Under this standard, ‘‘if the district court’s account
of the evidence is plausible in light of the record viewed in
its entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it would
have weighed the evidence differently’’. Id. at 574.
(7) Thus, in Stenberg, the United States Supreme Court
was required to accept the very questionable findings issued
by the district court judge—the effect of which was to render
null and void the reasoned factual findings and policy deter-
minations of the United States Congress and at least 27 State
legislatures.
(8) However, under well-settled Supreme Court jurispru-
dence, the United States Congress is not bound to accept the
same factual findings that the Supreme Court was bound to
accept in Stenberg under the ‘‘clearly erroneous’’ standard.
Rather, the United States Congress is entitled to reach its
own factual findings—findings that the Supreme Court accords
great deference—and to enact legislation based upon these
findings so long as it seeks to pursue a legitimate interest
that is within the scope of the Constitution, and draws reason-
able inferences based upon substantial evidence.
(9) In Katzenbach v. Morgan, 384 U.S. 641 (1966), the
Supreme Court articulated its highly deferential review of
congressional factual findings when it addressed the constitu-
tionality of section 4(e) of the Voting Rights Act of 1965.
Regarding Congress’ factual determination that section 4(e)
would assist the Puerto Rican community in ‘‘gaining non-
discriminatory treatment in public services,’’ the Court stated
that ‘‘[i]t was for Congress, as the branch that made this
judgment, to assess and weigh the various conflicting consider-
ations * * *. It is not for us to review the congressional resolu-
tion of these factors. It is enough that we be able to perceive
a basis upon which the Congress might resolve the conflict
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117 STAT. 1203
PUBLIC LAW 108–105—NOV. 5, 2003
as it did. There plainly was such a basis to support section
4(e) in the application in question in this case.’’. Id. at 653.
(10) Katzenbach’s highly deferential review of Congress’
factual conclusions was relied upon by the United States Dis-
trict Court for the District of Columbia when it upheld the
‘‘bail-out’’ provisions of the Voting Rights Act of 1965 (42 U.S.C.
1973c), stating that ‘‘congressional fact finding, to which we
are inclined to pay great deference, strengthens the inference
that, in those jurisdictions covered by the Act, state actions
discriminatory in effect are discriminatory in purpose’’. City
of Rome, Georgia v. U.S., 472 F. Supp. 221 (D.D.C. 1979)
aff’d City of Rome, Georgia v. U.S., 446 U.S. 156 (1980).
(11) The Court continued its practice of deferring to
congressional factual findings in reviewing the constitutionality
of the must-carry provisions of the Cable Television Consumer
Protection and Competition Act of 1992. See Turner Broad-
casting System, Inc. v. Federal Communications Commission,
512 U.S. 622 (1994) (Turner I) and Turner Broadcasting
System, Inc. v. Federal Communications Commission, 520 U.S.
180 (1997) (Turner II). At issue in the Turner cases was Con-
gress’ legislative finding that, absent mandatory carriage rules,
the continued viability of local broadcast television would be
‘‘seriously jeopardized’’. The Turner I Court recognized that
as an institution, ‘‘Congress is far better equipped than the
judiciary to ‘amass and evaluate the vast amounts of data’
bearing upon an issue as complex and dynamic as that pre-
sented here’’, 512 U.S. at 665–66. Although the Court recog-
nized that ‘‘the deference afforded to legislative findings does
‘not foreclose our independent judgment of the facts bearing
on an issue of constitutional law,’ ’’ its ‘‘obligation to exercise
independent judgment when First Amendment rights are
implicated is not a license to reweigh the evidence de novo,
or to replace Congress’ factual predictions with our own. Rather,
it is to assure that, in formulating its judgments, Congress
has drawn reasonable inferences based on substantial evi-
dence.’’. Id. at 666.
(12) Three years later in Turner II, the Court upheld the
‘‘must-carry’’ provisions based upon Congress’ findings, stating
the Court’s ‘‘sole obligation is ‘to assure that, in formulating
its judgments, Congress has drawn reasonable inferences based
on substantial evidence.’ ’’ 520 U.S. at 195. Citing its ruling
in Turner I, the Court reiterated that ‘‘[w]e owe Congress’
findings deference in part because the institution ‘is far better
equipped than the judiciary to ‘‘amass and evaluate the vast
amounts of data’’ bearing upon’ legislative questions,’’ id. at
195, and added that it ‘‘owe[d] Congress’ findings an additional
measure of deference out of respect for its authority to exercise
the legislative power.’’. Id. at 196.
(13) There exists substantial record evidence upon which
Congress has reached its conclusion that a ban on partial-
birth abortion is not required to contain a ‘‘health’’ exception,
because the facts indicate that a partial-birth abortion is never
necessary to preserve the health of a woman, poses serious
risks to a woman’s health, and lies outside the standard of
medical care. Congress was informed by extensive hearings
held during the 104th, 105th, 107th, and 108th Congresses
and passed a ban on partial-birth abortion in the 104th, 105th,
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117 STAT. 1204
PUBLIC LAW 108–105—NOV. 5, 2003
and 106th Congresses. These findings reflect the very informed
judgment of the Congress that a partial-birth abortion is never
necessary to preserve the health of a woman, poses serious
risks to a woman’s health, and lies outside the standard of
medical care, and should, therefore, be banned.
(14) Pursuant to the testimony received during extensive
legislative hearings during the 104th, 105th, 107th, and 108th
Congresses, Congress finds and declares that:
(A) Partial-birth abortion poses serious risks to the
health of a woman undergoing the procedure. Those risks
include, among other things: An increase in a woman’s
risk of suffering from cervical incompetence, a result of
cervical dilation making it difficult or impossible for a
woman to successfully carry a subsequent pregnancy to
term; an increased risk of uterine rupture, abruption,
amniotic fluid embolus, and trauma to the uterus as a
result of converting the child to a footling breech position,
a procedure which, according to a leading obstetrics text-
book, ‘‘there are very few, if any, indications for * * *
other than for delivery of a second twin’’; and a risk of
lacerations and secondary hemorrhaging due to the doctor
blindly forcing a sharp instrument into the base of the
unborn child’s skull while he or she is lodged in the birth
canal, an act which could result in severe bleeding, brings
with it the threat of shock, and could ultimately result
in maternal death.
(B) There is no credible medical evidence that partial-
birth abortions are safe or are safer than other abortion
procedures. No controlled studies of partial-birth abortions
have been conducted nor have any comparative studies
been conducted to demonstrate its safety and efficacy com-
pared to other abortion methods. Furthermore, there have
been no articles published in peer-reviewed journals that
establish that partial-birth abortions are superior in any
way to established abortion procedures. Indeed, unlike
other more commonly used abortion procedures, there are
currently no medical schools that provide instruction on
abortions that include the instruction in partial-birth abor-
tions in their curriculum.
(C) A prominent medical association has concluded
that partial-birth abortion is ‘‘not an accepted medical prac-
tice’’, that it has ‘‘never been subject to even a minimal
amount of the normal medical practice development,’’ that
‘‘the relative advantages and disadvantages of the proce-
dure in specific circumstances remain unknown,’’ and that
‘‘there is no consensus among obstetricians about its use’’.
The association has further noted that partial-birth abor-
tion is broadly disfavored by both medical experts and
the public, is ‘‘ethically wrong,’’ and ‘‘is never the only
appropriate procedure’’.
(D) Neither the plaintiff in Stenberg v. Carhart, nor
the experts who testified on his behalf, have identified
a single circumstance during which a partial-birth abortion
was necessary to preserve the health of a woman.
(E) The physician credited with developing the partial-
birth abortion procedure has testified that he has never
encountered a situation where a partial-birth abortion was
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117 STAT. 1205
PUBLIC LAW 108–105—NOV. 5, 2003
medically necessary to achieve the desired outcome and,
thus, is never medically necessary to preserve the health
of a woman.
(F) A ban on the partial-birth abortion procedure will
therefore advance the health interests of pregnant women
seeking to terminate a pregnancy.
(G) In light of this overwhelming evidence, Congress
and the States have a compelling interest in prohibiting
partial-birth abortions. In addition to promoting maternal
health, such a prohibition will draw a bright line that
clearly distinguishes abortion and infanticide, that pre-
serves the integrity of the medical profession, and promotes
respect for human life.
(H) Based upon Roe v. Wade, 410 U.S. 113 (1973)
and Planned Parenthood v. Casey, 505 U.S. 833 (1992),
a governmental interest in protecting the life of a child
during the delivery process arises by virtue of the fact
that during a partial-birth abortion, labor is induced and
the birth process has begun. This distinction was recognized
in Roe when the Court noted, without comment, that the
Texas parturition statute, which prohibited one from killing
a child ‘‘in a state of being born and before actual birth,’’
was not under attack. This interest becomes compelling
as the child emerges from the maternal body. A child
that is completely born is a full, legal person entitled
to constitutional protections afforded a ‘‘person’’ under the
United States Constitution. Partial-birth abortions involve
the killing of a child that is in the process, in fact mere
inches away from, becoming a ‘‘person’’. Thus, the govern-
ment has a heightened interest in protecting the life of
the partially-born child.
(I) This, too, has not gone unnoticed in the medical
community, where a prominent medical association has
recognized that partial-birth abortions are ‘‘ethically dif-
ferent from other destructive abortion techniques because
the fetus, normally twenty weeks or longer in gestation,
is killed outside of the womb’’. According to this medical
association, the ‘‘ ‘partial birth’ gives the fetus an autonomy
which separates it from the right of the woman to choose
treatments for her own body’’.
(J) Partial-birth abortion also confuses the medical,
legal, and ethical duties of physicians to preserve and
promote life, as the physician acts directly against the
physical life of a child, whom he or she had just delivered,
all but the head, out of the womb, in order to end that
life. Partial-birth abortion thus appropriates the termi-
nology and techniques used by obstetricians in the delivery
of living children—obstetricians who preserve and protect
the life of the mother and the child—and instead uses
those techniques to end the life of the partially-born child.
(K) Thus, by aborting a child in the manner that
purposefully seeks to kill the child after he or she has
begun the process of birth, partial-birth abortion under-
mines the public’s perception of the appropriate role of
a physician during the delivery process, and perverts a
process during which life is brought into the world, in
order to destroy a partially-born child.
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117 STAT. 1206
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(L) The gruesome and inhumane nature of the partial-
birth abortion procedure and its disturbing similarity to
the killing of a newborn infant promotes a complete dis-
regard for infant human life that can only be countered
by a prohibition of the procedure.
(M) The vast majority of babies killed during partial-
birth abortions are alive until the end of the procedure.
It is a medical fact, however, that unborn infants at this
stage can feel pain when subjected to painful stimuli and
that their perception of this pain is even more intense
than that of newborn infants and older children when
subjected to the same stimuli. Thus, during a partial-birth
abortion procedure, the child will fully experience the pain
associated with piercing his or her skull and sucking out
his or her brain.
(N) Implicitly approving such a brutal and inhumane
procedure by choosing not to prohibit it will further coarsen
society to the humanity of not only newborns, but all
vulnerable and innocent human life, making it increasingly
difficult to protect such life. Thus, Congress has a compel-
ling interest in acting—indeed it must act—to prohibit
this inhumane procedure.
(O) For these reasons, Congress finds that partial-
birth abortion is never medically indicated to preserve the
health of the mother; is in fact unrecognized as a valid
abortion procedure by the mainstream medical community;
poses additional health risks to the mother; blurs the line
between abortion and infanticide in the killing of a par-
tially-born child just inches from birth; and confuses the
role of the physician in childbirth and should, therefore,
be banned.
SEC. 3. PROHIBITION ON PARTIAL-BIRTH ABORTIONS.
(a) IN GENERAL.—Title 18, United States Code, is amended
by inserting after chapter 73 the following:
‘‘CHAPTER 74—PARTIAL-BIRTH ABORTIONS
‘‘Sec.
‘‘1531. Partial-birth abortions prohibited.
‘‘§ 1531. Partial-birth abortions prohibited
‘‘(a) Any physician who, in or affecting interstate or foreign
commerce, knowingly performs a partial-birth abortion and thereby
kills a human fetus shall be fined under this title or imprisoned
not more than 2 years, or both. This subsection does not apply
to a partial-birth abortion that is necessary to save the life of
a mother whose life is endangered by a physical disorder, physical
illness, or physical injury, including a life-endangering physical
condition caused by or arising from the pregnancy itself. This sub-
section takes effect 1 day after the enactment.
‘‘(b) As used in this section—
‘‘(1) the term ‘partial-birth abortion’ means 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
Effective date.
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117 STAT. 1207
PUBLIC LAW 108–105—NOV. 5, 2003
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; and
‘‘(2) the term ‘physician’ means a doctor of medicine or
osteopathy legally authorized to practice medicine and surgery
by the State in which the doctor performs such activity, or
any other individual legally authorized by the State to perform
abortions: Provided, however, That any individual who is not
a physician or not otherwise legally authorized by the State
to perform abortions, but who nevertheless directly performs
a partial-birth abortion, shall be subject to the provisions of
this section.
‘‘(c)(1) The father, if married to the mother at the time she
receives a partial-birth abortion procedure, and if the mother has
not attained the age of 18 years at the time of the abortion,
the maternal grandparents of the fetus, may in a civil action obtain
appropriate relief, unless the pregnancy resulted from the plaintiff’s
criminal conduct or the plaintiff consented to the abortion.
‘‘(2) Such relief shall include—
‘‘(A) money damages for all injuries, psychological and phys-
ical, occasioned by the violation of this section; and
‘‘(B) statutory damages equal to three times the cost of
the partial-birth abortion.
‘‘(d)(1) A defendant accused of an offense under this section
may seek a hearing before the State Medical Board on whether
the physician’s conduct was necessary to save the life of the mother
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.
‘‘(2) The findings on that issue are admissible on that issue
at the trial of the defendant. Upon a motion of the defendant,
the court shall delay the beginning of the trial for not more than
30 days to permit such a hearing to take place.
‘‘(e) A woman upon whom a partial-birth abortion is performed
may not be prosecuted under this section, for a conspiracy to violate
this section, or for an offense under section 2, 3, or 4 of this
title based on a violation of this section.’’.
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117 STAT. 1208
PUBLIC LAW 108–105—NOV. 5, 2003
LEGISLATIVE HISTORY—S. 3 (H.R. 760):
HOUSE REPORTS: Nos. 108–58 accompanying H.R. 760 (Comm. on the Judiciary)
and 108–288 (Comm. of Conference).
CONGRESSIONAL RECORD, Vol. 149 (2003):
Mar. 10–13, considered and passed Senate.
June 4, considered and passed House, amended, in lieu of H.R. 760.
Oct. 2, House agreed to conference report.
Oct. 21, Senate agreed to conference report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 39 (2003):
Nov. 5, Presidential remarks.
(b) CLERICAL AMENDMENT.—The table of chapters for part I
of title 18, United States Code, is amended by inserting after
the item relating to chapter 73 the following new item:
‘‘74. Partial-birth abortions .............................................................................. 1531’’.
Approved November 5, 2003.
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