Partial-Birth Abortion Trials Begin Monday, Pro-Life Groups Hopeful

National   |   Steven Ertelt   |   Mar 26, 2004   |   9:00AM   |   WASHINGTON, DC

Partial-Birth Abortion Trials Begin Monday, Pro-Life Groups Hopeful

by Steven Ertelt Editor
March 26, 2004

New York, NY ( — Judges in three states will hold separate hearings on Monday on lawsuits filed by abortion advocates seeking to overturn the partial-birth abortion ban President Bush signed last year.

After Bush approved the bill, the National Abortion Federation, a trade group of abortion businesses, Planned Parenthood, and several abortion practitioners filed three lawsuits claiming the legislation is unconstitutional because it lacks a health exception.

Federal judges issued injunctions preventing the law from taking effect and, in the time since, the Justice Department has battled hospitals and abortion businesses in an attempt to obtain medical records of such abortions to show they are performed mostly on healthy women and healthy babies.

The Bush administration says it will "will work vigorously to defend the law."

"The Department will be devoting all resources necessary to defend the bipartisan findings of Congress that this violent practice is unnecessary, as well as painful and cruel to the partially born child," Justice Department spokeswoman Monica Goodling said in a statement provided to

"A bipartisan majority in Congress reached this conclusion after eight years of testimony from respected medical professionals who stated that partial-birth abortion is never medically necessary," Goodling added.

A pro-life law firm that is assisting the Justice Department is confident that the Bush administration will prove the ban is constitutional.

"We believe the ban on partial-birth abortion is constitutional and will survive these legal challenges," said Jay Sekulow, Chief Counsel of the American Center for Law and Justice.

"It is our hope that the courts will come to the same conclusion that the American people have reached: that there is no medical necessity for a barbaric practice that takes the life of a child moments before birth," Sekulow said.

The ACLJ will be filing friend-of-the-court briefs in support of the ban.

Sekulow said he was encouraged by the rulings of U.S. District Court Judge Richard Casey, who has sided with the Justice Department’s efforts to obtain medical records of partial-birth abortions from various hospitals.

Judge Casey refused to overturn the ban on a summary judgment motion requested by NAF and also ruled that he would permit testimony that the unborn child can feel pain during an abortion.

But the Bush administration will face off with attorneys for abortion advocates who say the ban comes into conflict with a 2000 Supreme Court Decision that ruled a similar Nebraska ban unconstitutional on a 5-4 vote because it lacked a health exception.

However the district court judges rule, the decisions will almost definitely head to federal appeals courts and, ultimately, to the Supreme Court.

The makeup of the Supreme Court hasn’t changed since the 2000 Carhart v. Stenberg decision, and pro-abortion groups are hopeful that means the federal ban is headed for defeat.

But, Douglas Johnson of National Right to Life told he hopeful the Supreme Court will be receptive.

"In 2000, five Supreme Court justices said that Roe v. Wade protects the right of an abortionist to perform an a partial-birth abortion whenever he sees fit," Johnson said. "[S]o we can only hope that by the time this law gets to the U.S. Supreme Court, there will be a shift of at least one-vote away from that extreme position."

New York Judge Richard Casey has set a trial expected to last for four weeks, a trial before Nebraska Judge Richard Kopf is expected to last two weeks, while California Judge Phyllis Hamilton plans a three week trial.

The legislation to prohibit partial-birth abortions passed last October with strong bipartisan votes. The Senate approved the bill 64-34 while the House backed with a 281-142 vote.