By Dave Andrusko
Getting It Done
As our faithful readers know, last November the ink had barely dried on the Partial-Birth Abortion Ban Act when pro-abortionists secured injunctions in federal courts in San Francisco, New York City, and Lincoln, Nebraska. What many pro-lifers perhaps do not know is that as NRL News goes to press, the Justice Department is going toe to toe with the plaintiffs, vigorously defending a measure that has overwhelming support in Congress and among the general public. Planned Parenthood, individual abortionists, and trade associations such as the National Abortion Federation (NAF) insist the law is unconstitutional because the measure does not have a "health" exception. But this was no oversight. After exhaustive hearings, Congress concluded that no health exception was necessary because the procedure is never medically necessary to preserve the health of a woman. I have read a fair amount of the legal back and forth and it appears the pro-abortionists may have ensnared themselves in a trap of their own making.
Let's reason this out. If you were the Justice Department and plaintiffs tell the courts that partial-birth abortions are "medically necessary" for women with various "serious medical complications" or because they are "carrying a fetus with a severe anomaly," how could/would you respond?
Put a different way, if the abortionists are maintaining that the lack of a health exception "affirmatively endangers pregnant women," what would you need to determine whether this is true? The medical records, of course, with all sensitive patient information - - for instance, "Social Security numbers, addresses, phone numbers or other identifying information" - - removed so as to guard confidentiality.
In a spirited February 5 exchange, Assistant United States Attorney Sheila M. Gowan told U.S. District Judge Richard Casey that the Justice Department needed access to the medical records to determine whether the abortionists had actually performed the procedure, and "whether there was something about the maternal health that required the performance of that procedure, or was it just the doctor's preference to perform the procedure."
As it turned out, this hearing did not go well for the plaintiffs. Bear in mind that last November this same Judge Casey temporarily blocked the government from enforcing the ban. But his patience with the pro-abortionists' dilly-dallying was clearly wearing thin.
Talcott Camp, representing NAF, tried to shift the blame to the hospitals for the delays. Judge Casey was not buying it.
A clearly exasperated Casey said,"[Y]ou have brought the lawsuit. They [the plaintiffs] are going to do whatever it takes to produce hospital records. I will not - - hear me out loud and clear - - I will not let the doctors hide behind the shield of the hospital. Is that clear? I am fed up with stalls and delays." He added, "They didn't have to be plaintiffs. They chose to be, and now they are going to get it done."
When Ms. Camp indicated she didn't know how long it would take to produce the records, Judge Casey asked, "Would you like to have the case dismissed and bring [it back] in five years when you have time to go through the records and get them ready?"
Pro-abortionists found a more sympathetic ear in U.S. Chief District Judge Charles Kocoras of the Northern District of Illinois. He labeled the government's subpoena of records at Northwestern Memorial Hospital "a significant intrusion" of patients' privacy that would provide "little, if any, probative value" to the government's case.
In addition on March 5, U.S. District Judge Phyllis Hamilton rejected the Justice Department's effort to obtain abortion records from Planned Parenthood. Hamilton held "that the files are not relevant or necessary for a trial, which is scheduled to begin on March 29, according to Justice Department and Planned Parenthood officials," the Washington Post reported.
The Justice Department has tried a number of ways to secure the records, including serving subpoenas. However, Planned Parenthood abortion clinics in western Pennsylvania, San Diego, Los Angeles, New York City, Kansas City, and the Washington area have reportedly refused to turn over the relevant medical records. They argue this is "a sweeping invasion of privacy," as a Planned Parenthood Federation spokeswoman told the Kansas City Star.
Were this stonewalling to prevail, it would leave the Justice Department in the untenable position of having abortionists testifying that there are occasions when partial-birth abortions are medically necessary but without the records needed to evaluate/ contest whether this is true. Thus, earlier this month, the Justice Department told Judge Casey that the five abortionist plaintiffs shouldn't be permitted to testify when the department's efforts to obtain the medical records "have been completely thwarted, notwithstanding that plaintiffs admit that such discovery is entirely appropriate."
When I first read that sentence, I was puzzled. Could it be true that NAF had never denied that access to the medical information was "entirely appropriate"?
Actually, it goes beyond that. Turns out that NAF had criticized a group of physicians, including former Surgeon General C. Everett Koop, who supported the ban, charging that they were "not competent to argue that partial birth abortions are never medically necessary."
Why? Because, NAF wrote, they had not "reviewed the medical charts of patients who have undergone intact D&E [one of the pro-abortionists' name for partial-birth abortion] and therefore, these doctors cannot determine what medical options were most appropriate for these patients." Talk about being hoisted on your own petard!
The pro-abortionists' appetite for using the courts to thwart the will of the people is as voracious as it is undemocratic. Given that they have seeded the courts with many justices who see the world through a prism of judicial activism, this comes as no surprise.
So it must have come as a real showstopper when a judge, any judge, says to them, in effect, we're all going to play by the rules, including you.
Wouldn't that be something if evenhandedness in the court room ever became the order of the day?
Dave Andrusko can be reached at daveandrusko@hotmail.com