By Dave Andrusko
For the second time in three months, a federal judge has struck down the Partial-Birth Abortion Ban Act. Although he called the procedure "gruesome, brutal, barbaric and uncivilized," U.S. District Judge Richard Conway Casey concluded the 2003 law "cannot be sustained because it does not provide for an exception to protect the health of the mother."
NRLC Legislative Director Douglas Johnson commented, "Judge Casey said his ruling was dictated by a 5 to 4 Supreme Court ruling in Stenberg v. Carhart in 2000, which held that Roe v. Wade protects partial-birth abortion." Johnson added, "Future appointments to the Supreme Court will determine whether it remains legal to mostly deliver living premature infants and painfully puncture their skulls. President Bush is determined to ban partial-birth abortion, but John Kerry voted against the ban and has vowed that he will appoint only justices who agree with him."
The Department of Justice is expected to appeal Judge Casey's decision, as it has in a case coming out of San Francisco.
Pro-abortion forces have actually challenged the law in three legal venues. The case heard by Judge Casey was mounted by the National Abortion Federation and seven abortionists, with the ACLU serving as counsel.
On June 1, in a case brought by Planned Parenthood, District Judge Phyllis J. Hamilton in San Francisco gutted the law on the grounds that it was impermissibly vague and imposed an "undue burden." The Justice Department has appealed her ruling.
A decision in the third case, which took place in Lincoln, Nebraska, is expected September 8 from U.S. District Judge Richard Kopf, according to the Omaha World-Herald.
Most partial-birth abortions are performed in the fifth and sixth months of pregnancy, almost always on healthy babies of healthy mothers. In his dissent in Stenberg v. Carhart Supreme Court Justice Clarence Thomas accurately described the partial-birth abortion method:
"After dilating the cervix, the physician will grab the fetus by its feet and pull the fetal body out of the uterus into the vaginal cavity. At this stage of development, the head is the largest part of the body. . . . the head will be held inside the uterus by the woman's cervix. While the fetus is stuck in this position, dangling partly out of the woman's body, and just a few inches from a completed birth, the physician uses an instrument such as a pair of scissors to tear or perforate the skull. The physician will then either crush the skull or will use a vacuum to remove the brain and other intracranial contents from the fetal skull, collapse the fetus' head, and pull the fetus from the uterus."
As evidenced by his own language, Judge Casey fully comprehended how mind-numbingly barbaric partial-birth abortions are. During the 16-day-long trial, Judge Casey engaged many abortionists in lively exchanges. The man would not accept euphemisms for an answer.
The lead paragraph under the "Findings of Act" section bears being quoted in full.
"The Court finds that testimony at trial and before Congress establishes that D&X [the term used in lieu of partial-birth abortion] is a gruesome, brutal, barbaric, and uncivilized medical procedure. Dr. Anand's testimony [Dr. Anand is a world-renowned authority on pain in the unborn and newborns], which went unrebutted by Plaintiffs, is credible evidence that D&X abortions subject fetuses to severe pain. Notwithstanding this evidence, some of Plaintiffs' experts testified that fetal pain does not concern them, and that some do not convey to their patients that their fetuses may undergo severe pain during a D&X. Additionally, some of Plaintiffs' experts do not make full disclosure to women about what D&X entails."
Judge Casey also wrote that experts called by Department of Justice lawyers "reasonably and effectively" refuted the claim that partial-birth abortion has "safety advantage over other second-trimester abortion techniques."
However, alluding to the almost impossibly difficult standard established by the Supreme Court in Carhart, Casey also wrote that the High Court's ruling "informed us that this gruesome procedure may be outlawed only if there exists a medical consensus that there is no circumstance in which any women could potentially benefit from it." (emphasis added) The operative line in Judge Casey's 92-page decision opinion is "there is a division of medical opinion."
As part of his decision-making, Judge Casey rejected the government's argument that the Court's "sole obligation is to assure that, in formulating judgements, Congress had drawn reasonable inferences based on substantial evidence." Judges are not often known for their willingness to pay deference, even to a co-equal branch of government. Casey wrote that, "This court heard more evidence during its trial than Congress heard over the span of eight years."
Pro-lifers were appalled. "As partial-birth abortion was debated on the national stage over the last several years, many people refused to believe it existed," said Cathy Cleaver Ruse, director of planning and information for the U.S. bishops' Secretariat for Pro-life Activities. "But testimony from the ACLU's team of abortion doctors about their methods for killing children in the fifth and sixth months of pregnancy revealed partial-birth abortion to be every bit as real and as horrible as the pro-life community claimed."
Pro-life Congressman Chris Smith (R-NJ) was no less blunt.
"The Supreme Court's extreme, pro-abortion legacy was on full display," he said. "The Supreme Court's twisted interpretation of the Constitution that allows abortion in our country for any reason, including brutal partial-birth abortions, was reflected in today's ruling in New York."
When President Bush signed the Partial-Birth Abortion Ban Act November 5, 2003, he said that in partial-birth abortion "a terrible form of violence has been directed against children who are inches from birth." As noted, challenger Sen. John Kerry voted against passing the Partial-Birth Abortion Ban Act every chance he got - - six times.
However, thanks in large part to a lengthy debate, the unholy truth that unborn babies suffer unimaginable pain in a partial-birth abortion is gradually making its way into public consciousness. Recently, Senator Sam Brownback and Congressman Chris Smith introduced the Unborn Child Pain Awareness Act. (See Action Alert, back cover.)
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.
Sen. Rick Santorum (R-Pa.), chairman of the Senate Republican Conference, offered this assessment of the decision.
"This case in New York has a very good record of evidence, which will ultimately be submitted to the Supreme Court for their reconsideration of a ban on partial-birth abortion. I am pleased to see that Judge Casey confirmed what Congress established - - that partial-birth abortion is a 'gruesome, brutal, barbaric, and uncivilized medical procedure' and that partial birth abortions subject fetuses to severe pain.
"This case also brought to light a significant piece of information - - that in no case 'could the Plaintiffs point to a specific patient or actual circumstance' in which partial-birth abortion was 'necessary to protect a woman's health.' "