New York Times (USA), August 27, 2004
U.S. Court in New York Rejects
Partial-Birth Abortion Ban
A federal judge in New York ruled yesterday that
a federal law banning a rarely used method
of abortion was unconstitutional because it
did not exempt cases where the procedure might
be necessary to protect a woman's health.
The ruling, by Judge Richard Conway Casey, came
in a challenge brought by the National Abortion
Federation and seven doctors to a November
2003 law that bans the method known as partial-birth
Judge Casey determined that the Supreme Court
required, in a decision four years ago, that
any law limiting abortion must have a clause
permitting doctors to use a banned procedure
if they determine that the risk to a woman's
health would be greater without it.
The Supreme Court 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," Judge Casey
wrote. The Supreme Court's opinion struck down
a state law in Nebraska.
The New York case, which was argued by lawyers
from the American Civil Liberties Union, was
one of three cases challenging the partial-birth
abortion law. On June 1, a federal judge in
California ruled the law unconstitutional on
similar but broader grounds than Judge Casey
cited. The Justice Department has appealed
that decision. A challenge in Nebraska is still
in federal court there.
The ruling is a new blow to legislation that
abortion opponents have hailed as one of their
most significant victories. President Bush
strongly backed the bill.
Attorney General John Ashcroft said in Washington
yesterday that the Justice Department would
continue to defend the law vigorously and would
appeal the ruling. A department statement quoted
President Bush, who had said the law would
"end an abhorrent practice and continue
to build a culture of life in America."
The ruling by Judge Casey, in United States District
Court for the Southern District of New York,
makes it considerably less likely that the
Bush administration will be able to implement
the law as it is currently written. It also
will shift the focus of the abortion debate
back to the Supreme Court and its cornerstone
1973 ruling in Roe v. Wade upholding a women's
broad right to abortion.
At issue is a procedure, generally used in the
second or third trimester of pregnancy, that
involves partially extracting an intact fetus
from a woman's uterus and then killing it by
emptying the brain from the skull. Also known
as D and X, for dilation and extraction, it
has been used in cases of rare or unanticipated
severe medical complications of pregnancy.
After listening to doctors describe the procedure
in detail during 16 days of hearings this spring,
Judge Casey wrote that it is "gruesome,
brutal, barbaric and uncivilized." He
cited medical experts' testimony that the procedure
subjects the fetus to "severe pain."
He also dismissed much of the testimony by A.C.L.U.
witnesses, saying he did not believe that many
of their "purported reasons for why D
and X is medically necessary are credible;
rather they are theoretical or false."
But Judge Casey was even more pointedly critical
of Congress, saying that it had voted for the
law without seriously examining the medical
issues. "This court heard more evidence
during its trial than Congress heard over the
span of eight years," the judge wrote.
He found that Congress, in writing the law, had
ignored furious dissension among doctors over
the safety and necessity of the disputed abortion.
The lawmakers had overlooked testimony in their
own hearings, he said, and based the bill on
the conclusion that partial-birth abortion
is "never necessary."
The law includes an exception if there is a risk
to a woman's life, but not a broader exception
if a doctor decides that there is a risk to
a patient's health. A violation is a felony
punished with up to two years in jail and fines
up to $250,000.
The A.C.L.U. suit did not center on defending
the procedure, but on contesting the limitations
in the law on doctors' and women's ability
to determine medical care.
"This is a great day for women's health,
because it means the Constitution holds that
doctors will treat women's health and not Congress,"
said Talcott Camp, an A.C.L.U. lawyer in the
<< New York Times -- 8/27/04 >>
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