Second Judge Declares Partial-Birth Abortion Ban Unconstitutional

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

Second Judge Declares Partial-Birth Abortion Ban Unconstitutional Email this article
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by Steven Ertelt Editor
August 26, 2004

New York, NY ( — A second federal judge has declared the federal ban on partial-birth abortions unconstitutional, saying that it lacks a health exception that the Supreme Court said such bans should have.

U.S. District Judge Richard C. Casey said the nation’s high court, in the 2000 Carhart vs. Nebraska case, made it clear that exceptions to allow abortions when needed to preserve the health of the mother must be added to bans on the gruesome abortion procedure.

After the Carhart decision, Congress added a lengthy findings section to the partial-birth abortion ban legislation. The section discussed the years of testimony Congress had accumulated and cited numerous doctors and medical groups contending a health exception is never necessary.

But Judge Casey claimed the findings contradicted itself because it included the views of some doctors who disagree and say the three-day long abortion procedure may be needed in a medical emergency.

Judge Casey said the Supreme Court ruled that the only way the abortion procedure could be banned was if a "medical consensus" could be reaching showing that no woman would benefit from the abortion procedure.

In his opinion, Casey said, "the testimony at trial and before Congress establishes that D&X [partial-birth abortion] is a gruesome, brutal, barbaric, and uncivilized medical procedure."

However, "[w]hile Congress and lower courts may disagree with the Supreme Court’s constitutional decision, that does not free them from their constitutional duty to obey the Supreme Court’s rulings," Casey said.

In June, ruling on another of the three separate lawsuits filed against the ban, U.S. District Judge Phyllis Hamilton also said the partial-birth abortion ban runs afoul of the Carhart decision.

Earlier this month, the Justice Department announced it would appeal the San Francisco ruling.

"We are in the process of the appeal of these issues now, which tells you exactly what we’re doing and where we’re going,” Attorney General John Ashcroft said Thursday.

In that case, Dr. Curtis Cook, an OB/GYN and Michigan State University professor who specializes in high-risk pregnancies and pregnancies with complications, told the court he didn’t believe partial-birth abortions were ever medically necessary.

Cook said the American College of Obstetricians and Gynecologists is on record as saying "there is no situation where they can think that this is the only option available."

A federal judge in Nebraska is considering the third lawsuit and is expected to rule against the ban as well. He overturned the Nebraska ban on partial-birth abortions — a decision that ultimately led to the Carhart Supreme Court case.

Judge Casey allowed extensive testimony from medical experts who said unborn children feel intense pain during the abortion procedure and that partial-birth abortions are dangerous for women’s health, but he apparently was not swayed.

President Bush signed the partial-birth abortion ban into law in November 2003.

"For years a terrible form of violence has been directed against children who are inches from birth while the law looked the other way,” Bush told a crowd of 400 pro-life lawmakers and pro-life advocates upon signing the bill.