DETROIT  For the second time in four years, a Michigan statute regarding abortion has been stuck down in federal court. United States District Judge Arthur J. Tarnow today declared that Michigan's so-called "Infant Protection Act", passed in 1999, unconstitutional. This decision makes final his temporary injunction from March 2000.

"Court after court has recognized that these bans prohibit most second- and in some cases even first-trimester surgical abortions," said Kary Moss, ACLU of Michigan Executive Director. "As a result, the bans force some women from safer to riskier abortions."

Judge Tarnow's decision focused on the law's failure to contain an adequate exception to protect the mental and/or physical health of the pregnant woman, a factor which the legislature chose not to include in the language in spite of the fact that omitting it would would make the law unconstitutional.

He also addressed the issue of a physician's "exposure to criminal liability when the procedures are necessary to protect the physical or mental health of the pregnant woman." Judge Tarnow recognized the doctors "would fear conviction and punishment" in the course of treating their patients.

"The legislature should not be practicing medicine or determining what is the best medical treatment for any given woman. That's a decision that should be made by a woman in consult with her doctor," added Moss. "After two attempts at this, at taxpayer expense, I hope the Michigan legislature will now give up."

In June 2000, the U.S. Supreme Court struck down a similar Nebraska so-called partial birth abortion statute because it unduly burdened a pregnant woman's right to choose a pre-viability abortion, and because the statute failed to provide adequate protection for the life and health of the woman. (Stenberg v Carhart, 530 U.S. 914 (2000)