The Partial-Birth Abortion Trials: Casey at the Bench

By Cathy Cleaver Ruse, Esq.

Like the "collective amnesia" that is said to occur when a culture forgets a common experience, abortion in this country requires a kind of collective blindness. Where abortion is concerned, Roe v. Wade rendered the Constitution blind to the personhood of children not yet born.

This was demonstrated vividly in the recent trials on the 2003 Partial-Birth Abortion Ban Act in New York, Nebraska, and California federal district courts. The lead witnesses for the plaintiffs, an assembly of seasoned abortionists, took the stand to describe under oath what they do to infants in the 5th and 6th months of pregnancy. The testimony was callous, even brutal, and astonishingly frank. (Full transcripts are available at www.usccb.org/prolife.)

All three trials have now drawn to a close, and one judge has ruled. California Judge Phyllis Hamilton in Planned Parenthood v. Ashcroft declared the ban unconstitutional. Her lengthy opinion shows that, to her, the case wasn't even close.

She bought wholesale the testimony of eight abortionists, recognizing their "vast experience" - - one had done 5,000 abortions, another claimed 30,000 - - but questioned the credibility of four OB/GYNs who supported the ban because they were "pro-life" and had not, themselves, aborted thousands of children. An expert in fetal neurobiology and fetal pain had testified that abortion at 20 weeks causes "severe and excruciating pain" to the child. Judge Hamilton ruled this testimony "irrelevant."

Any veteran of the pro-life movement will have an ingrained aversion to federal judges. This is only natural, given that they are the ones who first forced on our nation unlimited abortion and who have protected its constitutional status for 31 years.

But in the midst of these historic trials there was a pleasant surprise. That surprise came in the form of Judge Richard Conway Casey of the Southern District of New York. Judge Casey, though legally blind, appeared to see the humanity of the child where the Judge Hamiltons of the world see only "choice."

The plaintiffs in the New York case were the National Abortion Federation and several individual abortionists. Early in the trial Judge Casey interrupted the direct examination of Dr. Cassing Hammond, a witness for the plaintiffs, and said, "Excuse meYou don't feel any obligation whatsoever to protect the life of the fetus?"

An evasive answer followed and Judge Casey asked again, "You don't find any dual responsibility; your obligation is only to the woman?" Dr. Hammond answered, "In the circumstances in which I am doing terminations, that is correct."

Later in the trial Judge Casey asked Stephen Chasen, who performs partial-birth abortions, whether these abortions "hurt the baby." Chasen said he didn't know. Casey pressed the point: "I asked you if you had any care or concern for the fetus whose head you were crushing." The answer: "No."

Closing arguments were made recently in the New York case, and in them it appeared that Casey did not share Judge Hamilton's appetite for swallowing the arguments of abortionists.

ACLU attorney Stephen Hut, representing the plaintiffs, disparaged the credibility of an expert who supported the ban because he had done "at most a dozen surgical abortions." Judge Casey was unimpressed: "Do you think that no one is qualified to testify concerning abortion unless they perform them?" he asked. "Does that mean that a pathologist isn't qualified to testify in a murder trial because he has never committed a murder?"

When Hut discussed what he insisted was the "horribly wrenching choice" that women seeking second-trimester abortions must make "between their own health" and "continuing a very much wanted pregnancy," Casey stopped him in his tracks. "The government wasn't able to test any of that, were they, because at every turn where medical records were sought, the medical institution resisted the production of records."

(Ron Fitzsimmons, the executive director of the National Coalition of Abortion Providers, in repudiating what he called "the party line," estimated that the method was used 3,000-5,000 times annually, and "in the vast majority of cases" on "a healthy mother with a healthy fetus that is 20 weeks or more along" [New York Times, Feb. 26, 1997.]

Hut argued that a recently published study by abortion doctor and plaintiff Stephen Chasen supported the argument that partial-birth abortion is the preferable method. But Judge Casey had read the study too, noting that its bottom line was that both partial-birth and dismemberment abortions were safe and that the former actually carries the risk of future premature births - - something the plaintiffs had failed to mention.

Throughout the trial, and again at closing argument, Judge Casey showed little patience for the euphemistic or ultra-technical terms used by abortion doctors with their patients. "I remember very clearly how witnesses testified," he said, "that they would 'disarticulate the fetus.'" "They didn't tell the women in simple language that what you're doing is tearing the arms and legs off the baby." And with partial-birth abortion, he said, women did not hear about how doctors would "insert a pair of scissors in the base of the skull of the baby and then suck his brain out" but only terms like "reducing the fetal skull."

In the Nebraska case, it's business as usual under Judge Richard Kopf. Kopf is the same judge who six years ago struck down Nebraska's ban on partial-birth abortion. So willing was Kopf to uphold the practice that he overturned the will of the people of Nebraska after just one day of testimony from two abortionists, one of whom was not board certified and could not practice at any hospital. That uncertified doctor, LeRoy Carhart, is the lead plaintiff in the case before him now.

The outlook for the remaining two cases is uncertain, at best. But there seems at least one fighting chance with Casey at the bench.

Cathy Cleaver Ruse, Esq., is director of planning and information, Secretariat for Pro-Life Activities, U.S. Conference of Catholic Bishops.