N.Y. Federal Judge Rules Ban on So-Called ‘Partial-Birth’ Abortion Unconstitutional
U.S. District Judge Richard Casey on Thursday struck down the federal ban on so-called "partial-birth" abortion, saying that the law lacks an exception to protect a pregnant woman's health, the Long Island Newsday reports (Hurtado, Long Island Newsday, 8/26).
The Partial-Birth Abortion Ban Act (S 3) bans "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" (California Healthline, 8/3). Abortion providers who violate the ban could face felony charges, up to two years in prison and fines of up to $250,000, according to the New York Times (Preston, New York Times, 8/27).
The Department of Justice has been defending the law in three separate trials after federal judges in San Francisco, New York and Nebraska each issued temporary restraining orders to prevent enforcement of the ban following President Bush's November 2003 signing of the measure. The restraining orders were issued in response to lawsuits filed by Planned Parenthood Federation of America, the American Civil Liberties Union on behalf of the National Abortion Federation and the Center for Reproductive Rights on behalf of four abortion providers. Each lawsuit alleges that the law is unconstitutional because of the absence of a health exception (California Healthline, 8/3). In place of a health exception, the law includes a long "findings" section that documents medical evidence presented during congressional hearings that, according to supporters of the law, indicates that the procedures banned by the law are never medically necessary (California Healthline, 6/2).
Although Casey in his ruling called the procedure "brutal, barbaric and uncivilized," he said that the ban is unconstitutional because the Supreme Court has "made clear" that a health exception is required for any such law, the AP/Washington Post reports (AP/Washington Post, 8/27). Casey wrote, "While Congress and lower courts may disagree with the Supreme Court's constitutional decisions, that does not free them from their constitutional duty to obey the Supreme Court's rulings" (Goldman, Los Angeles Times, 8/27).
Casey said that the Supreme Court has ruled that a ban on an abortion procedure can lack a health exception only "if there exists a medical consensus that there is no circumstance in which any woman could potentially benefit from it," according to the New York Times. Casey in his ruling was "critical" of Congress, saying that it had approved the ban "without seriously examining the medical issues," the Times reports. He added that in writing the law, Congress "ignored furious dissension among doctors over the safety and necessity of the disputed" procedure, according to the Times.
"This court heard more evidence during its trial than Congress heard over the span of eight years," Casey wrote, adding that Congress also ignored testimony in making their determination that the procedure is "never necessary." However, Casey also "dismissed" testimony from ACLU witnesses that attempted to show why the procedure is medically necessary, saying that their testimony was "theoretical or false," according to the Times.
Attorney General John Ashcroft on Thursday said that DOJ would appeal Casey's ruling and "defend the law vigorously," the New York Times reports (New York Times, 8/27).
NAF President Vicki Saporta said, "We brought this lawsuit to protect women's health and ensure that our member physicians could continue to provide their patients with quality care," adding, "With today's ruling, women and doctors can continue to make medical decisions free from the interference of politicians" (NAF release, 8/26).
PPFA President Gloria Feldt said, "The abortion ban is a brazen affront to women's health, the right to medical privacy and the U.S. Constitution and was rightfully struck down," adding, "This ruling is a critical step toward ensuring that women and doctors -- not politicians -- can make private, personal health care decisions" (PPFA release, 8/26).
Jan LaRue, chief counsel for Concerned Women for America, said, "This is one more disappointing setback in the legal marathon to end this heinous and unnecessary procedure," adding, "As many as 2,200 innocent babies, most nearly born, suffer death by torture each year as a result of this procedure" (CWA release, 8/26).
Sen. Rick Santorum (R-Pa.) said, "This case in New York has a very good record of evidence, which will ultimately be submitted to the Supreme Court for their reconsideration of a ban on partial-birth abortion," adding, "I am pleased to see that Judge Casey confirmed what Congress established -- that partial-birth abortion is a 'gruesome, brutal, barbaric, and uncivilized medical procedure' and that partial-birth abortions subject fetuses to severe pain" (Santorum release, 8/26).
U.S. District Judge Phyllis Hamilton of the Northern District of California in June also ruled that the federal ban is unconstitutional. Hamilton's ruling prevented the law from being enforced against the 900 PPFA clinics nationwide and PPFA-affiliated physicians. DOJ earlier this month filed an appeal seeking to overturn Hamilton's decision. In its appeal to the 9th U.S. Circuit Court of Appeals, DOJ disagreed with Hamilton's ruling that the law presented an "undue burden" on a woman's right to undergo an abortion (American Health Line, 8/3).
U.S. District Judge Richard Kopf is expected to rule in the Nebraska case challenging the law on Sept. 8, according to the Omaha World-Herald. Kopf has "questioned" whether Congress "seriously considered" the health of pregnant women when writing the law, according to the World-Herald. During the trial, Kopf told a DOJ attorney, "I have to tell you, I don't see that Congress spent anywhere near the kind of effort that you folks have spent in honestly trying to give me a fair picture of the medical situation."
Julie Schmit-Albin, executive director of Nebraska Right to Life, declined to say how she believes Kopf will rule, according to the World-Herald. However, Schmit-Albin said, "We'll just have to wait and see how Judge Kopf rules, but it would be no big surprise, to anyone, if these cases end up in the Supreme Court" (Tysver, Omaha World-Herald, 8/26). NPR's "All Things Considered" on Thursday examined the ruling (Lewis, "All Things Considered," NPR, 8/26). The complete segment is available online.