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Federal judge in N.Y. strikes down partial birth abortion ban

WASHINGTON (BP)–A judge in New York City dealt a serious blow Aug. 26 to hopes that a ban on partial birth abortion might survive the federal judiciary.

Richard Casey, a federal judge in Manhattan, declared the Partial Birth Abortion Ban Act unconstitutional. Supporters of the law had expressed hope Casey might uphold the prohibition, which bars an abortion on a nearly totally delivered unborn child. During a trial that concluded in June, Casey frequently questioned abortion doctors concerning the facts of abortion procedures. He also issued some pretrial rulings sought by the Department of Justice in defending the law.

Challenges to the ban have been heard in three separate trials this year. Advocates of the ban have held out little hope that they’ll win in the only remaining case, which is before Judge Richard Kopf in Lincoln, Neb. Kopf invalidated Nebraska’s partial birth abortion ban in 1997, a decision that was affirmed by the Supreme Court. In June, Judge Phyllis Hamilton, sitting in San Francisco, also struck down the ban.

Southern Baptist pro-life leader Richard Land targeted the Supreme Court, rather than Casey, for criticism, saying he was “disappointed but not surprised.”

“The problem — with a capital P — is the majority of the Supreme Court,” said Land, president of the Ethics & Religious Liberty Commission. “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.”

Carrie Gordon Earll, bioethics policy analyst for Focus on the Family, said Casey’s decision “is simply the bitter fruit of Roe v. Wade -– and we can expect the partial birth abortion ban to be another of its victims.”

Casey seemed to indicate in his ruling that 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 opinion invalidating the Nebraska partial birth abortion ban.

“While Congress and lower courts may disagree with the Supreme Court’s constitutional decision, that does not free them from their constitutional duty to obey the Supreme Court’s rulings,” Casey said, according to Reuters.

Casey did say he found that 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 invalidates a law President Bush signed in November. It prohibits a procedure that normally occurs in the fifth or sixth month of pregnancy, in which 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. The collapse of the skull provides for easier removal of the baby’s head.

For at least two years, Land and other pro-life, pro-family leaders have been calling on the Senate to halt delaying tactics and to grant floor votes to Bush appeals court nominees who have drawn stiff opposition from abortion-rights organizations and their allies in the chamber. The Democrats’ filibusters have worked so far on most of the nominees they have targeted. Bush has yet to have an opportunity to nominate a Supreme Court justice.

Referring to a need for new justices, Land said he was “grateful for the foresight of our forefathers, who gave us constitutional ways to deal with this kind of crisis, where 70 percent of the American people strongly desire what their recalcitrant judges will not give them –- namely, a ban on partial birth abortion.”

The Supreme Court’s ruling against Nebraska’s ban prompted congressional pro-life members to draft a new version that sought to remedy the justices’ declaration that the Nebraska law could be interpreted to cover other abortion methods. They also sought to address the justices’ ruling that the ban needed an exception for maternal health reasons. The new federal law provided more specific language on the procedure it sought to prohibit. It also declared in its findings the method is neither safe for women nor necessary to preserve their health, based on the testimony of doctors. It included an exception to protect the mother’s life.

Supporters of the ban also opposed a health exception because it would have established a loophole that would have left the law with little, if any, power. In its 1973 decisions legalizing abortion, the Supreme Court defined maternal health so liberally it had the practical effect of permitting abortion for any reason throughout all stages of pregnancy.

Congress twice adopted partial birth abortion bans in the 1990s only to have President Clinton veto them both times. In both 1996 and 1998, the House achieved the two-thirds majorities necessary to override vetoes, but the Senate fell short. The Nebraska ban struck down by the high court was patterned after the federal version that never became law.

In 1996 and 2002 Southern Baptist Convention messengers approved resolutions condemning the partial birth procedure.