In 2003, the Partial Birth Abortion Ban Act was enacted. The Act authorizes fines and/or jail terms of up to two years for any doctor who performs a partial birth abortion. A partial birth abortion is defined as an abortion in which the baby is delivered past the baby's navel outside the body of the mother or after the entire fetal head is outside the body of the mother. Most partial birth abortions are performed between 20 and 26 weeks.

The United States Supreme Court established, by way of caselaw, that the government could not place an undue burden on a woman's right to terminate a non-viable fetus. It has been argued that the Act fails the test set forth in the above-mentioned caselaw. Numerous district courts have issued temporary restraining orders that prohibit the United States Justice Department from enforcing the provisions set forth in the Act.

Constitutionality of the Act

It is contended by may constitutional experts that the Act will not be upheld by the appellate courts or by the United States Supreme Court. Opponents of the Act argue that the Act fails to provide a narrow and definitive definition of the prohibited procedure. Further, it is argued that the Act fails to provide an exception that would permit the procedure to be used when it would be in the best interests of the mother's health.

Proponents of the Act argue that the Act is constitutional and second trimester abortions should not be permitted under any circumstances. Pro-life groups have especially been active in attempting to have the Act found unconstitutional. Proponents argue that partial birth abortions are gruesome and inhumane. They further argue that the vast majority of babies killed during partial birth abortions are alive until the end of the procedure.

Current State of the Law

Currently, the Act is still considered constitutionally valid. The Act itself has not been overturned. However as noted above, numerous district courts have issued injunctions precluding the enforcement of the Act finding that the Act fails to comply with current caselaw of the United States Supreme Court that precludes the federal government from imposing an undue burden on the women's right to chose.