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Judge Nixes 'Partial-Birth' Ban

Wisconsin Gov. Jim Doyle talks to the media after his announcement Monday, Aug 17, 2009, in Madison, Wis., that he will not seek a third term in 2010 because he believes governors should limit themselves to two terms in office. (AP Photo/Andy Manis)
AP
A federal judge declared the Partial-Birth Abortion Ban Act unconstitutional Thursday in the second such ruling in three months — even though he called the procedure "gruesome, brutal, barbaric and uncivilized."

U.S. District Judge Richard C. Casey — one of three federal judges across the country to hear simultaneous challenges to the law earlier this year — faulted the ban for not containing an exception to protect a woman's health, something the Supreme Court has made clear is required in laws prohibiting particular types of abortion.

The law, signed last November, banned a procedure known to doctors as intact dilation and extraction and called partial-birth abortion by abortion foes. The fetus is partially removed from the womb, and the skull is punctured or crushed.

Louise Melling, director of the ACLU's Reproductive Freedom Project, said her group was thrilled by the ruling.

"We can only hope as we have decision after decision after decision striking these bans, saying they endanger women's health, that the legislatures will finally stop," she said.

On June 1, U.S. District Judge Phyllis Hamilton in San Francisco also found the law unconstitutional, saying it violates a woman's right to choose an abortion. A judge in Lincoln, Neb., has yet to rule. The three judges suspended the ban while they held the trials.

The three verdicts are almost certain to be appealed to the Supreme Court.

"We are in the process of the appeal of these issues now, which tells you exactly what we're doing and where we're going," Attorney General John Ashcroft said Thursday.

The ban, which President Clinton twice vetoed, was seen by abortion rights activists as a fundamental departure from the Supreme Court's 1973 precedent in Roe v. Wade. But the Bush administration has argued that the procedure is cruel and unnecessary and causes pain to the fetus.

At trials earlier this year, 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.

In his ruling, Casey said that there is evidence that the procedure can have safety advantages for women. He said the Supreme Court had made it clear that "this gruesome procedure may be outlawed only if there exists a medical consensus that there is no circumstance in which any women could potentially benefit from it."

At another point, Casey wrote that testimony put before himself and Congress showed the outlawed abortion technique to be a "gruesome, brutal, barbaric and uncivilized medical procedure."

Casey, who was appointed to the bench by President Clinton in 1997, was considered by some observers to be the best legal hope for the law's supporters.

"We were on pins and needles on this one," said Gloria Feldt, president of Planned Parenthood Federation of America. "The judge was very aggressive in his questioning and very transparent in his articulation of his personal views on the matter. Fortunately, he chose to uphold the law."

During a hearing earlier this year, Casey repeatedly asked doctors whether they tell pregnant women prior before an abortion that they will rip the fetus apart and that it might feel pain.

"Did you tell them you were sucking the brains out of the same baby they desired to hold?" the judge asked one doctor. At another point, Casey, who is blind, asked the same doctor whether a mother can detect in advance whether a baby will be born blind.

Doctors have construed the Supreme Court's decision in Roe. v. Wade to mean they can perform abortions usually until the 24th to 28th week after conception, or until the "point of viability," when a healthy fetus is thought to be able to survive outside the womb. Generally, abortions after the "point of viability" are performed only to preserve the mother's health.

The New York case was brought by the National Abortion Federation, which represents nearly half the nation's abortion providers.

The Supreme Court in 2000 overturned a Nebraska partial-birth abortion law because it did not allow the banned procedure even when a doctor believes the method is the best way to preserve the woman's health.

To get around that decision, Congress simply declared that the procedure is never medically necessary — and during weeks of testimony, doctors testifying for the government stressed that same point — claiming that there are better alternatives to the method, and that it may even be harmful to women.

Witnesses for the abortion providers, however, testified in all three trials that the banned method is often preferred and sometimes necessary to preserve a woman's health.

Congressional sponsors said the ban would outlaw only 2,200 or so abortions a year. But abortion providers testified the banned method can happen even at times when doctors try to avoid it, such as when they attempt to remove the fetus from the womb in pieces.

Because of the possibility that the fetus may partially exit a woman during an otherwise legal procedure, abortion rights advocates said the law could ban almost all second-trimester abortions, which account for about 10 percent of all abortions in the United States.