New York Judge Asks Tough Questions in Abortion Ban Lawsuit

National   |   Steven Ertelt   |   Nov 5, 2003   |   9:00AM   |   WASHINGTON, DC

New York Judge Asks Tough Questions in Abortion Ban Lawsuit

by Steven Ertelt Editor
November 5, 2003

Manhattan, NY ( — A federal judge asked both sides tough questions during a hearing on a challenge to the partial-birth abortion ban President Bush signed today.

In advance of Bush’s signature on the bill, the ACLU filed a lawsuit on behalf of the National Abortion Federation, a federation of independent abortion businesses across the country.

U.S. District Judge Richard Casey pressed both sides to make their case.

ACLU attorney Talcott Camp told Casey he should follow the 2000 Carhart v. Stenberg decision whereby the Supreme Court by a 5-4 decision overturned a Nebraska abortion ban because it lacked a health exception.

"The Supreme Court has spoken: This ban must have a health exception," she said. "The Supreme Court and only the Supreme Court can change the standard."

But Casey interrupted Camp asking, "Doesn’t the court have to give some deference to the findings of Congress that are spelled out in this statute?"

In a lengthy findings section, Congress indicated partial-birth abortions are never medically necessary to protect the health of the mother.

Assistant U.S. attorney Sheila Gowan argued on behalf of the Bush administration. She urged Casey to defer to the Congressional findings.

But Casey pressed her and asked if Congress was attempting to "trump" the Supreme Court. "I don’t think so, your honor," she responded.

Casey made no decision on the request for an injunction against the law and mat not do so this week. Abortion advocates were hoping to get the pro-life law enjoined before midnight, when it goes into effect.

He became upset when Camp asked him to issue a restraining order against the law because partial-birth abortions are continuing.

"From what you tell me, they’re ignoring the whole thing and going full speed ahead," Casey said. "Sounds like, ‘Damn the torpedoes, we’re going to do what we’re going to do."’

Planned Parenthood filed a similar lawsuit in San Francisco on behalf of its affiliates and a pro-abortion law firm filed suit for partial-birth abortionist LeRoy Carhart and three others in Nebraska.

In the Nebraska hearing, a federal judge granted a temporary injunction that prevents the law from taking effect in several states where the four abortion practitioners who sued are licensed to practice.

That doesn’t go over well with pro-life groups.

"Partly born, premature infants will die tomorrow at the point of seven-inch scissors, because of a federal judge’s order," Douglas Johnson of National Right to Life commented.

Johnson said the Supreme Court will ultimately hear a lawsuit regarding the ban again.

Bush signed the partial-birth abortion ban Wednesday afternoon saying, the right to life "cannot be granted or denied by government because it does not come from government. It comes from the creator of life.”