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Judge voids late term abortion ban as unconstitutional { August 27 2004 } Original Source Link: (May no longer be active)
http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2004/08/27/MNGG58FF0D1.DTLhttp://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2004/08/27/MNGG58FF0D1.DTL
Judge voids late-term abortion ban
Federal law declared unconstitutional for excluding exemption
- Julia Preston, New York Times
Friday, August 27, 2004
A federal judge in New York ruled Thursday that a federal law banning a rarely used method of abortion was unconstitutional because it did not exempt cases in which 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 physicians to a November 2003 law that bans the method its opponents call partial-birth abortion.
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 would potentially benefit from it," 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 Ban Act. On June 1, U.S. District Judge Phyllis Hamilton in San Francisco declared unconstitutional a federal ban on certain midterm abortions, saying the law endangered women's health, was too vaguely written and imposed an undue burden on women's abortion rights. 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 had given his strong personal backing to the bill.
Attorney General John Ashcroft said Thursday 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 Casey, in U.S. District Court for the Southern District of New York, makes it considerably less likely that the Bush administration will be able to put into effect 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 ruling in Roe v. Wade upholding a woman'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&X, for dilation and extraction, it has been used in cases of rare or unanticipated severe medical complications of pregnancy.
During 16 days of hearings this spring, doctors testified that of 1.3 million abortions performed annually, the law would affect about 130,000, almost all in the second trimester. Some observers suggest the number would be much lower -- 2,200 to 5,000.
After listening to doctors describe the procedure in detail, 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 ACLU witnesses, saying he did not believe that many of their "purported reasons for why D&X is medically necessary are credible; rather they are theoretical or false."
But Casey was even more pointedly critical of Congress, saying that it had voted for the law without seriously examining the medical issues.
He found that Congress, in writing the law, had ignored furious dissension among doctors over the safety and necessity of the disputed method of abortion. The lawmakers had overlooked testimony in their own hearings, he said, and based the bill on the conclusion that this particular abortion procedure 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 Associated Press contributed to this report.
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