Judge Calls Partial-Birth Abortion Act Unconstitutional

In a highly anticipated ruling, a federal judge found the Partial-Birth Abortion Ban Act unconstitutional Thursday because it does not include a health exception for what he called a "gruesome procedure."

U.S. District Judge Richard C. Casey in Manhattan said the Supreme Court has made it clear that a law which prohibits the performance of a particular abortion procedure must include an exception to preserve a woman's life and health.

"While Congress and lower courts may disagree with the Supreme Court's constitutional decisions, that does not free them from their constitutional duty to obey the Supreme Court's rulings," Casey wrote.

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."

The law, signed in November, represented the first substantial federal legislation limiting a woman's right to choose an abortion. Abortion rights activists said it conflicted with three decades of Supreme Court precedent.

It banned a procedure that is known to doctors as intact dilation and extraction, but is called "partial-birth abortion" by abortion foes. During the procedure, the fetus is partially removed from the womb, and its skull is punctured or crushed.

Casey, one of three federal judges nationwide hearing challenges to the abortion law, noted that the Supreme Court has established that "abortion of a non-viable fetus, as a form of personal privacy, is a fundamental right found in the due process guarantee of liberty."

On June 1, U.S. District Judge Phyllis Hamilton in San Francisco also found the law unconstitutional, saying it "poses an undue burden on a woman's right to choose an abortion." A judge in Lincoln, Neb., has yet to rule.

Casey challenged the conclusion by Congress that there is no significant body of medical opinion believing the procedure has safety advantages for women.

Casey said the Congressional record itself undermined the finding because it included contradictory views, including nine medical associations which opposed the act because they believed the abortion procedure provides safety advantages for some women.

Megan L. Gaffney, a spokeswoman for the U.S. attorney's office in Manhattan, said the government had no comment.

"We're thrilled," said Louise Melling, director of the ACLU's Reproductive Freedom Project.

She said state legislatures and Congress for years has considered passing bans on a wide range of safe abortion practices.

"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," Melling said.

Although some observers suggest the law will affect 2,200 to 5,000 annually out of 1.3 million total abortions, doctors at trials earlier this year have testified it would affect about 130,000 abortions or almost all in the second trimester.

The ruling by Casey was eagerly anticipated in part because the judge was considered by some observers to be the best hope for supporters of the law to win a judicial victory.

"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 to an abortion that they will rip the fetus apart and that it might feel pain.

Dr. Carolyn Westhoff, who estimates she performs or supervises 500 or more abortions annually in Manhattan, testified that some women ask to hold the fetus afterward to help them grieve.

"Did you tell them you were sucking the brains out of the same baby they desired to hold?" the judge asked.

"They know the head's empty," the doctor responded. "I don't tell them I'm sucking the brain out."

When Westhoff added that she doesn't "think that helps the grieving process," Casey snapped, "I didn't ask that."

At another point, Casey, who is blind, asked Westhoff, "A condition that causes blindness, can that be detected?"

He added that he wanted to know if "a mother can detect in advance that a baby will be born blind."

"Not that I'm aware of," Westhoff answered.
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