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Judge strikes down partial-birth abortion ban, says law places ‘undue burden’ on women


WASHINGTON (BP)–The United States government’s ban on partial-birth abortion is an unconstitutional burden on a woman’s right to abort her unborn child, a judge in San Francisco has ruled in the first of three federal court decisions to be issued on the law.

Federal Judge Phyllis Hamilton invalidated the Partial-birth Abortion Ban Act June 1. In her 117-page opinion, Hamilton ruled the 2003 law is: 1) An “undue burden” on a woman’s right to have an abortion in the second trimester; 2) “unconstitutionally vague” and 3) needs an exception for the mother’s health to meet requirements established by the U.S. Supreme Court.

Hamilton permanently blocked enforcement of the law but applied that injunction only to the Planned Parenthood Federation of America and its affiliates, the city and county of San Francisco, and their representatives.

The decision in the northern district of California precedes opinions from federal courts in New York and Lincoln, Neb. Trials concerning the ban of a procedure that involves the killing of a nearly totally delivered child began in all three courts March 29. All three judges had issued temporary injunctions preventing enforcement of the ban.

Hamilton’s ruling against the law was not a surprise. Neither will it be a shock if Judge Richard Kopf in Lincoln strikes down the ban. He invalidated Nebraska’s partial-birth abortion ban in 1997, a decision that was affirmed by the Supreme Court.

Supporters of the law are more hopeful that New York Judge Richard Casey might uphold the ban. Casey, who has scheduled closing arguments in his courtroom for June 22, frequently questioned abortion doctors himself concerning the facts of abortion procedures. He also issued some pretrial rulings sought by the Department of Justice in defending the law. Casey ordered a New York hospital to turn over abortion records requested by DOJ, but a federal appeals court blocked his order. Hamilton, however, blocked DOJ’s effort to gain records from Planned Parenthood and some of its affiliates.


Pro-life advocates decried Hamilton’s decision.

“This is yet one more tragic example of a federal judiciary whose moral compass has been grossly demagnetized,” said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission. “The American people are rightly appalled at the barbarous partial-birth abortion procedure.

“This decision underscores the fact that there are people in our society who are willing to tolerate or affirm dismembering a partially born baby in pursuit of individual choice,” Land said. “This decision brings disgrace on the federal judiciary and further discredits Planned Parenthood, which is obviously supporting this barbarous procedure of a partial-birth abortion.”

Bioethicist Ben Mitchell said, “What about the undue burden on the unborn baby? Having one’s brains sucked out after having had scissors plunged into one’s head seems like quite a burden. Parial-birth abortion is pure brutality.

“Any nation that allows partial-birth abortion cannot be regarded as a civilized culture,” said Mitchell, a professor at Trinity Evangelical Divinity School and a consultant for the ERLC.

Doug Johnson, legislative director for the National Right to Life Committee, said Hamilton’s “deep, personal hostility to the law has been evident throughout the judicial proceedings and is evident in many passages” of her opinion. The Supreme Court “will ultimately decide whether our elected representatives can ban the practice of mostly delivering a living, premature infant and then puncturing her skull,” he said.

PPFA President Gloria Feldt called Hamilton’s ruling a “landmark victory for medical privacy rights and women’s health.”

“In their zealous pursuit of this dangerous ban and their attempt to seize hundreds of confidential medical records, this administration has squandered vast amounts of U.S. tax dollars to appease anti-choice extremists and fulfill an ideological agenda,” Feldt said in a written statement.

It was clear from the beginning of the trial the DOJ lawyers would have a difficult time convincing Hamilton the law did not need an exception for the mother’s health. That concern was evidenced in her opinion.

“The government’s interests in protecting potential life and minimizing potential pain to the fetus do not alter this court’s finding regarding the necessity of a health exception…. [T]his court does not find that the government’s asserted fetal interests override the necessity of a health exception to preserve the life and health of the mother,” Hamilton wrote.

Though the federal government offered evidence of the pain the partial-birth procedure would cause in an unborn child, Hamilton said it was not convincing.

“The issue of whether fetuses feel pain is unsettled in the scientific community,” she wrote. “However, it appears to be irrelevant to the question of whether [partial-birth abortion] should be banned, because it is undisputed that if a fetus feels pain, the amount is no less and in fact might be greater in [dismemberment abortion] than with the [partial-birth] method.”

Hamilton’s ruling came in a challenge to 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. The collapse of the skull provides for easier removal of the baby’s head.

The Supreme Court’s 2000 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 law provides more specific language on the procedure it seeks to prohibit. It also declares in its findings the method is neither safe for women nor necessary to preserve their health, based on the testimony of doctors. It includes 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.

In addition to individual doctors who perform abortions, the National Abortion Federation is challenging the law in the New York court and the Center for Reproductive Rights in Nebraska. Planned Parenthood was the abortion rights organization that took on the law in San Francisco.

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.

The Southern Baptist Convention approved resolutions condemning the partial-birth procedure in both 1996 and 2002.

“This ruling demonstrates once again why the judicial nominations issue is so crucial to America’s future,” the ERLC’s Land said. “The president’s judicial nominations, if they weren’t being obstructed by the Senate, would be addressing this issue, because the president is nominating people to the bench who believe we ought to have a society in which every life is affirmed.

“I still believe that partial-birth abortion will be seen by history as the Uncle Tom’s Cabin of the abortion movement,” Land said. “As Uncle Tom’s Cabin put a human face on the evil institution of slavery, thus making its continuance intolerable to the American people, so partial-birth abortion has put a human face on the evil of abortion and will make abortion on demand intolerable to a majority of the American people.”
— With reporting by Michael Foust