By Cathy Cleaver Ruse, Esq.
Pro-lifers are used to taking it in the chops from federal judges. They're the abortion industry's perennial trump card in the contest for legal protection for unborn children.
That's what makes Judge Richard Conway Casey's recent ruling against the Partial-Birth Abortion Ban Act so difficult.
He is not a judge from the abortion-activist mold; that became clear from the way he conducted his trial. He pressed abortion doctors to explain what they knew about fetal pain and whether they cared.
He insisted they use plain language when discussing their brutal acts. He refused to let their lawyers get away with propaganda in his courtroom. The National Abortion Federation and the group of abortion doctors who made up the plaintiffs in this case must have cursed their bad luck that Casey was their draw.
Yet, under the "law of the land," wrote Casey in his decision, "the Act is unconstitutional."
Judge Casey called partial-birth abortion "a gruesome, brutal, barbaric, and uncivilized medical procedure." These are welcome words indeed from the federal bench.
But Casey felt compelled to overturn the partial-birth abortion ban under prior Supreme Court rulings: "While Congress and lower courts may disagree with the Supreme Court's constitutional decisions," he wrote, "that does not free them from their constitutional duty to obey the Supreme Court's rulings."
Make no mistake: The "law of the land" on abortion is not one that we, the people have established. Rather it is judge-made law handed down by the Supreme Court beginning with Roe v. Wade in 1973. The latest installment, Stenberg v. Carhart (2000), was the focus of Casey's decision.
The Stenberg case, decided on a 5-4 vote, examined the constitutionality of a Nebraska state law against partial-birth abortion. The decision held that when "a significant body of medical opinion believes that a procedure may bring with it greater safety for some patients," a "health exception" is constitutionally required.
Judge Casey heard 16 days' worth of testimony from experts on both sides of the case about whether partial-birth abortion was ever medically necessary or beneficial. (For full transcripts of the trial and Judge Casey's decision, see www.usccb.org/prolife.) Dr. Steven Clark, testifying for the federal government, explained that there are no medical conditions for which partial-birth abortion would be necessary, either to preserve the health of the mother or where fetal anomalies are present.
The plaintiffs' experts, on the other hand, made claims that were far less plausible to Judge Casey: "The Court does not believe that many of Plaintiffs' purported reasons for why [partial-birth abortion] is medically necessary are credible," he wrote; "rather they are theoretical or false." As to the claimed safety advantages of partial-birth abortion, they "do not rise above the realm of the hypothetical," Casey said, adding, "Intuition does not equate to scientific fact."
But in the end, it was the standard established by the narrow five-member Stenberg majority that prevailed. "Although the Court finds that the Government's experts offered testimony that was highly credible and reasoned," Casey wrote, "the Court cannot ignore that the evidence indicates a division of medical opinion" about the necessity of partial-birth abortion. "The Supreme Court has held that when there is a division of medical opinion" about the relative safety of an abortion method "a health exception is constitutionally required."
Like the Nebraska law, the federal ban includes an exception only in cases which threaten the life of the mother. But unlike the Nebraska law, the federal ban contains a finding of Congress that there is a "medical consensus" that partial-birth abortion is "never medically necessary and should be prohibited." While courts are bound to give deference to "reasonable" conclusions of Congress, Judge Casey decided that Congress' conclusion about a "medical consensus" was not reasonable in light of the opposing medical views presented at trial.
It strikes one as almost incredible that the Supreme Court would devise a legal standard where indecision among doctors would have such decisive constitutional results. Yet, Judge Casey's ruling suggests that Stenberg did just what its high-placed critics had charged - - it created an abortionist's veto to partial-birth abortion legislation. "The Supreme Court in Stenberg informed us," wrote Casey, with a note of irony, "that this gruesome procedure may be outlawed only if there exists a medical consensus that there is no circumstance in which any woman could potentially benefit from it."
All that is required to invalidate a ban on partial-birth abortion is for abortion doctors to toe the party line.
Even Justice Anthony Kennedy, who has voted to uphold Roe v. Wade, dissented from the Stenberg opinion. He wrote that the majority's standard gives abortion doctors "a veto power" over a legislature's judgment that partial-birth abortions should not be performed.
Another Stenberg dissenter, Justice Clarence Thomas, said the majority-created "exception" to the ban on partial-birth abortion "entirely swallows the rule." "In effect," said Thomas in his dissent, "no regulation of abortion procedures is permitted because there will always be some doctors who conclude that the procedure is preferable."
Justice Antonin Scalia blamed the Stenberg majority for giving "live-birth abortion free rein" under the Constitution. Scalia wrote that the standard "requires an abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others."
Judge Casey's ruling shows how distorted our Constitution has become as a result of Roe v. Wade. And why Roe must be reversed.
Cathy Cleaver Ruse, Esq,. is director of planning and information at the Secretariat for Pro-Life Activities, U.S. Conference of Catholic Bishops.