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Partial-Birth Abortion

18 U.S. Code § 1531 - Federal Partial-Birth Abortion Law

The topic of abortion has been a contentious one in the United States for decades, and the recent overturning of Roe v. Wade by the United States Supreme Court has only deepened the controversy.  

Yet, despite Roe v. Wade's overturn throwing the question of abortion back to the states, partial-birth abortions are still prohibited by federal law in every state under Title 18 U.S. Code 1531.

Partial-Birth Abortion Law - 18 U.S. Code § 1531
A physician who performs a partial-birth abortion could be tried and convicted of a federal crime.

This federal statute is found within 18 U.S. Code Chapter 74, which has only one statute defining when partial-birth abortion is unlawful under federal law. Under 18 U.S. Code 1531, a physician who knowingly performs a partial-birth abortion and kills a human fetus can be tried and convicted of a federal crime. 

A partial birth abortion is when the person performing an abortion intentionally delivers a living fetus through the vagina until the entire fetal head is outside of the mother in a head-first birth.  

If the fetus is breached, then a partial-birth abortion occurs when someone intentionally delivers a living fetus through the vagina until part of the fetal trunk has passed outside of the mother's body.  

A partial birth abortion occurs upon delivering the baby until its head or trunk is outside the mother if the doctor's intent in delivering the child is to perform an overt act they know will cause the death of the partially delivered living fetus.  

A partial birth abortion can also occur if the doctor delivering the fetus performs an overt act, other than completing delivery, that kills the partially delivered child. 

18 U.S.C. 1531 says, “(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus…. 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 subsection takes effect one day after the enactment.” 

A physician convicted of performing this procedure for any reason other than to save the mother's life could face up to 2 years in federal prison. 

What Is Partial-Birth Abortion? 

The term "partial-birth abortion" is a colloquial term, not a medical one. Under 18 U.S.C. 1531, it can refer to either of the following two actions: 

  • Intentionally delivering a fetus vaginally until the head is outside the cervix, then performing a procedure to kill it; or
  • Delivering the fetus in breech position until the navel or upper body is outside the cervix, then performing a procedure to kill it.

This second procedure encompasses a common late-term abortion procedure known medically as "intact dilation and extraction" (D&X).  

This controversial procedure has been at the heart of numerous debates about abortion rights. However, the delivery and abortion occur, 18 U.S.C. 1531 makes it a crime for a physician to perform one. 

Other Things to Know About This Law 

18 U.S.C. 1531 only applies in situations "affecting interstate or foreign commerce,"—meaning it involves crossing state or national boundaries. For example, if the woman or the physician crosses a state line to perform a partial-birth abortion, the federal law applies. 

Federal Partial-Birth Abortion Law
The federal partial-birth abortion law only applies when someone crosses state or national borders.

In localized situations, state laws regarding partial-birth abortion would apply. If a state permits a partial-birth abortion and no state lines are crossed, the physician would not be charged with a crime for performing one. 

A woman who receives a partial-birth abortion cannot be prosecuted under 18 U.S.C. 1531. This law is directed only at physicians who perform the procedure. 

The law provides a legal exception when the mother's life is in danger. For example, suppose a physician determines, in good faith medical judgment, that the procedure is necessary to save a mother's life endangered by a physical disorder, illness, or injury. In that case, they are legally exempt from prosecution.  

Additionally, 18 U.S.C. 1531 permits a physician defendant to seek a trial delay for up to 30 days to have a hearing before the state medical board to determine whether the physician's conduct was necessary to save the mother's life. The findings of the hearing are then admissible in court and become part of the physician's defense. 

A “physician” includes any doctor of medicine or osteopathy legally authorized to practice medicine and surgery in the state.  

The statute also applies to any other people legally authorized to perform an abortion and those who do not have authorization but who perform prohibited partial birth abortions anyway. 

What Are the Penalties for 18 U.S.C. 1531? 

Those found guilty of violating Title 18 U.S. Code 1531 face potentially serious consequences, including criminal penalties and civil remedies. 

Criminal Penalties  

If you're a physician convicted under 18 U.S.C. 1531, you could face the following: 

  • Fines of up to $250,000; and
  • Imprisonment for up to two years.

Civil Remedies  

A physician convicted of 18 U.S.C. 1531 may also legally face civil lawsuits brought by either of the following parties: 

  • The father of the fetus, if married to the mother at the time she receives a partial-birth abortion procedure; or
  • The maternal grandparents of the fetus if the mother has not attained the age of 18 at the time of the abortion.

In such cases, either of these parties may obtain relief of three times the cost of the partial-birth abortion and appropriate damages for physical or psychological injuries. 

What Are the Defenses for 18 U.S.C. 1531? 

If you are a physician charged with performing an illegal partial-birth abortion under federal law, an experienced federal criminal defense attorney can implement one or more defense strategies to fight the charges. Some common defenses are discussed below. 

Defenses for Partial-Birth Abortion
Contact our federal defense attorneys for help.

Perhaps we can argue that there was a life endangerment exception. Your attorney may show that you determined in good faith that the procedure was necessary to save a mother's life endangered by a physical disorder, illness, or injury—thereby making you exempt from prosecution. 

Perhaps we can argue there was a lack of intent. The law requires that the act be performed knowingly. Therefore, proving a lack of intent to perform a partial-birth abortion could be a plausible defense. 

Perhaps we can argue that there was a misinterpretation of the law. Since 18 U.S.C. 1531 hinges on its definition of partial-birth abortion, your attorney could argue that the procedure performed did not fall within this definition. Remember, 18 U.S.C. 1531 doesn't outlaw abortion in general—only a specific type of abortion. 

You can phone us or review the case details using the contact form. We provide legal representation across the United States on federal criminal matters. Eisner Gorin LLP is based in Los Angeles, California. 

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