Second judge strikes down partial-birth abortion ban
- Aug 31, 2004 - comment
A judge in New York City has deflated hopes a congressional ban on partial birth abortion might gain approval in the federal judiciary.
Richard Casey, a federal judge in Manhattan, declared Aug. 26 the Partial Birth Abortion Ban Act is unconstitutional. Supporters of the law had expressed cautious optimism Casey, unlike other federal judges, might uphold the prohibition, which bars a procedure on a nearly totally delivered unborn child. During a trial that concluded in June, Casey frequently questioned abortion doctors concerning their procedures and potential pain to the unborn child. He also issued some pretrial rulings sought by the Department of Justice in defending the law.
Advocates of the ban never held out much hope in challenges to the law that occurred also this year in federal courts in San Francisco and Lincoln, Neb. In the San Francisco trial, Phyllis Hamilton struck down the ban in June. Richard Kopf is expected to do the same in Lincoln. Kopf invalidated Nebraska’s partial birth abortion ban in 1997, a decision that was affirmed by the Supreme Court.
ERLC President Richard Land criticized the Supreme Court, rather than Casey, saying he was “disappointed but not surprised.”
“The problem—with a capital P—is the majority of the Supreme Court,” Land said. “We are not going to be able to eliminate this heinous, barbaric procedure called partial birth abortion—which is the killing of a partially born, viable, outside-the-womb baby—until we change the makeup of the current Supreme Court. As Justice [Antonin] Scalia has noted succinctly, this court has taken sides in the culture war, and it’s not the side of life.”
Casey seemed to indicate in his ruling the high court left him with no option, based on its decisions in the 1973 Roe v. Wade and Doe v. Bolton opinions legalizing abortion for essentially any reason throughout pregnancy and its 2000 support for invalidating the Nebraska partial birth abortion ban.
Casey said, however, he found testimony “establishes that [partial birth abortion] is a gruesome, brutal, barbaric and uncivilized medical procedure.” He also said “credible evidence” exists that “[such] abortions subject fetuses to severe pain.”
Casey’s ruling strikes down a law President Bush signed in November. It prohibits a procedure that normally occurs in the fifth or sixth month of pregnancy. The abortion doctor delivers an intact baby feet first until only the head is left in the birth canal. The doctor pierces the base of the infant’s skull with surgical scissors, then inserts a catheter into the opening and suctions out the brain.