Two more lawsuits yet to be decided

Federal Judge Strikes Down Ban on Partial-Birth Abortion

By Dave Andrusko

As expected, a U.S. District judge appointed by former President Bill Clinton struck down the Partial-Birth Abortion Ban Act signed into law last November by President George W. Bush. Handed down June 1, Judge Phyllis Hamilton's decision specifically prohibits the Justice Department from enforcing the ban, enacted with widespread bipartisan support in Congress, at any of Planned Parenthood's 900 clinics. Hamilton's 117-page decision followed a three-week trial in March and April.

The act is under challenge in two other federal courts in Nebraska and New York. Decisions in those cases are expected this summer.

Criticism of Judge Hamilton was swift.

"The president strongly disagrees with today's California court ruling, which overturns the overwhelming bipartisan majority in Congress that voted to pass this important legislation," the president's press secretary, Scott McClellan, said. "The president is committed to building a culture of life in America, and the administration will take every necessary step to defend this law in the courts.''

Ohio Rep. Steve Chabot, a House sponsor of the ban, said Hamilton's decision was "a seriously flawed decision by a lone federal judge in San Francisco." The law, Chabot said, "is sound, constitutional legislation."

Sen. Rick Santorum (R-Pa.) called the ruling "a travesty." Hamilton "is a very liberal judge," he added, noting, "This is a classic example of how judges impose their philosophies on judicial proceedings. . . . She clearly had prejudged this case."

Monica Goodling, a spokeswoman for the Justice Department, said in a statement," The Justice Department vigorously litigated this case, as well as the pending cases in Nebraska and New York involving challenges to the law banning partial-birth abortions." The department, she added, "will continue to devote all resources necessary to defend this Act of Congress, which President Bush has said 'will end an abhorrent practice and continue to build a culture of life in America.'"

NRLC, which vigorously supported the ban, pointed out that the decision was hardly unexpected.

"Judge Hamilton's deep personal hostility to the law has been evident throughout the judicial proceedings, and is evident in many passages in her 117-page injunction," said NRLC Legislative Director Douglas Johnson. "Other district and appellate judges also will be heard from during the months ahead."

Johnson added, "It is the U.S. Supreme Court that will ultimately decide whether our elected representatives can ban the practice of mostly delivering a living premature infant and then puncturing her skull. A one-vote shift on the Supreme Court would allow the ban on partial-birth abortions to be upheld."

Planned Parenthood and a local affiliate brought the California case. Subsequently, they were joined as plaintiffs by the city and county of San Francisco.

As the Washington Post explained in its story, "Hamilton adopted most of the arguments put forward by the Planned Parenthood Federation of America in finding that the measure was too vague, that it placed an unfair burden on women seeking certain kinds of abortions and that it did not do enough to protect women's health."

Although Congress justified the ban in part by finding that the partial-birth abortion method would cause excruciating pain to the partly born infant, Judge Hamilton dismissed this factor as "irrelevant," saying that even if it is true it also would apply to dismemberment of the fetus at the same stages.

On May 20, Senator Sam Brownback (R-Ks.) and Congressman Chris Smith (R-NJ) introduced the Unborn Child Pain Awareness Act. (See story, page one.)

This bill would require that abortionists provide women seeking any type of abortion past 20 weeks with certain information regarding the capacity of their unborn children to experience pain and regarding the availability of pain-reducing drugs. (For more information on the bill and on the issue of fetal pain, see www.nrlc.org/abortion/fetal_pain/index.html).