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Abortion Ban Ruled Unconstitutional

The Nation

A district judge strikes down the law barring 'partial-birth' procedures because it lacks an exemption to guard women's health.

August 27, 2004|John J. Goldman | Times Staff Writer

NEW YORK — A federal judge Thursday declared the Partial-Birth Abortion Ban Act unconstitutional, faulting it for not including an exemption for cases in which the procedure was used to protect a woman's health.

In the second such ruling in three months, U.S. District Judge Richard C. Casey said that such a provision in the law was required by a Supreme Court decision.

"While Congress and lower courts may disagree with the Supreme Court's constitutional decisions," Casey wrote, "that does not free them from their constitutional duty to obey the Supreme Court's rulings."

Casey was one of three federal judges across the country to hear simultaneous challenges this year to the law banning what opponents called partial-birth abortion. During the procedure, the fetus is partially removed from the uterus and the skull is punctured or crushed.

On June 1, District Judge Phyllis J. Hamilton in San Francisco found that the ban was vague and imposed an undue burden on a woman's right to choose. The Justice Department has appealed her ruling. Another federal judge in Lincoln, Neb., has yet to decide in the case.

The three judges suspended the ban while they held trials, and the verdicts are likely to be appealed to the Supreme Court.

In his 92-page opinion, Casey said that even a physician testifying for the government had acknowledged that debate existed within the medical community over whether the procedure was the safest for some women under certain circumstances.

At the same time, Casey wrote, testimony in the case before him and from congressional witnesses had demonstrated that intact dilation and extraction -- as the procedure is known in the medical community -- was "gruesome, brutal, barbaric and uncivilized."

In 1973, the Supreme Court in Roe vs. Wade affirmed a woman's right to end her pregnancy. The ban signed in November by President Bush is the first federal measure since to completely outlaw an abortion method.

The U.S. attorney's office in Manhattan had no comment following Casey's decision. But the American Civil Liberties Union, the National Abortion Federation and the Planned Parenthood Federation of America called the ruling a major victory.

"We brought this lawsuit to protect women's health and ensure that our member physicians could continue to provide their patients with quality care," said Vicki Saporta, the federation's president. "With today's ruling, women and doctors can continue to make medical decisions free from the interference of politicians."

The director of the ACLU's reproductive freedom project, Louise Melling, said, "We are extremely pleased that the court recognized that the ban threatens women's health."

Doctors testified during the trials that the law would affect about 130,000, mostly second-trimester abortions, out of the 1.3 million procedures performed annually in the United States. Other experts have said the number would be less than 5,000.

In his opinion, Casey labeled the testimony he had heard from government witnesses that fetuses were subjected to severe pain as "credible." Some physicians, the judge said, also had told the court that the pain "does not concern them" and that they do not convey to their patients that their fetuses may experience pain during the procedure.

But Casey made clear Thursday that he was deciding the case before him on narrow grounds: that the ban did not contain an exemption for safeguarding a woman's health.

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