The Justice Department filed a brief this week with the 6th U.S. Circuit Court of Appeals, The Washington Post reported Thursday The department argued that the Ohio law should be upheld because "it is virtually a carbon copy of provisions that the Supreme Court already has held are constitutional."
The case was the first to reach a federal appeals court since a 2000 Supreme Court decision, Stenberg v. Carhart, overturned a "partial birth" abortion ban in Nebraska. The high court ruled 5-4 that the Nebraska prohibition was unconstitutional because it did not provide an exception to protect the health of the woman.
In a concurring opinion Justice Sandra Day O'Connor said that "a ban on partial birth abortion that only prescribed the D&X (dilation and extraction) method of abortion and that included an exception to preserve the life and health of the mother would be constitutional."
The Justice Department argued in its brief that the Ohio Legislature followed O'Connor's reasoning.U.S. District Judge Walter Rice ruled that the health exception in the Ohio law was too narrow because it would not allow a "partial birth" abortion procedure "when it is simply safer than alternative methods of abortion."
The Justice Department, along with Ohio officials, are appealingRice's ruling.