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Partial Birth Abortion Ban Struck Down in New York

New York Judge strikes down ban on D&X despite calling it a ''gruesome, brutal, barbaric and uncivilized medical procedure''
( [email protected] ) Aug 26, 2004 07:10 PM EDT

A federal judge in New York ruled against the highly debated Partial Birth Abortion Ban, a law conservatives said was necessary to prevent the unnecessary slaughter of unborn children, on the basis that the ban does not include an exception for the health of the mother, Thursday, August 26, 2004.

The U.S. District Judge Richard C. Casey, one of three high-court justices to take on the issue, clearly stated his personal disdain toward the highly contested process.

"The Court finds that the testimony at trial and before Congress establishes that D&X [partial-birth abortion] is a gruesome, brutal, barbaric, and uncivilized medical procedure,” said Casey.

However, he added that the ban must include an exception to preserve the mother’s life and health.

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,” he said.

He concluded by saying abortion should be a choice under the “due process of guarantee of liberty” in the Constitution.

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,” wrote Casey.

The case was brought before the court on behalf of seven physicians by the National Abortion Federation of abortion providers and the American Civil Liberties Union. The two groups claimed the law, which passed the congress last year, would ban some 95 percent of second-trimester abortions without exception. They argued that the law would unfairly imprison any physician practicing such abortions, including those who performed it to save the life of the patient.

The contested “partial birth abortion,” known in medical terms as “intact dilation and extraction,” was outlawed by President Bush in November 2003. During the brutal procedure, the doctor partially removes the 3-6 month old unborn child from the womb, punctured the child’s head, and then crushes it in.

During the hearing, Casey asked doctors whether they tell the pregnant women of the procedures involved in “partial birth abortions.”

"Did you tell them you were sucking the brains out of the same baby they desired to hold?" Casey asked Dr. Carolyn Westhoff, a Manhattan doctor who performs or supervises 500 or more abortions annually.

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

Pro-abortion groups hailed the ruling as a “victory.”

"This ruling is a critical step toward ensuring that women and doctors - not politicians - can make private, personal health care decision. Doctors represented in this lawsuit can now provide the best health care to their patients free from the daunting specter of prosecution by the Ashcroft Justice Department," said Planned Parenthood Federation of America President Gloria Feldt.

Planned Parenthood, with its 900 locations across the States, performs nearly half of all abortions in America.

In her statement, Feldt said the partial birth abortion ban was "a brazen affront to women's health, the right to medical privacy and the U.S. Constitution” that was “rightfully struck down.”

Louise Melling, director of the ultra-liberal ACLU's Reproductive Freedom Project, said she was “thrilled” at 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,” said Melling.

However, conservative and pro-life leaders said while the ruling was disappointing, the battle is “only beginning.”

"The court missed an important opportunity to step in and protect life by eliminating the bridge between abortion and infanticide," said Jay Sekulow, chief counsel of the American Center for Law and Justice.

"While the decision is disappointing, it's important to realize that this ruling represents only the beginning of a lengthy legal process that will end at the Supreme Court of the United States. We remain committed to working for the protection of human life and outlawing the barbaric procedure known as partial-birth abortion," he said.

"It is unfortunate that the court failed to uphold the constitutionality of the abortion ban and felt that it was bound by the Supreme Court's decision in the Nebraska case, but we remain hopeful that the ban ultimately will clear the constitutional hurdles," Sekulow added.

Douglas Johnson, legislative director for the National Right to Life Committee (NRLC), explained the ruling on future terms.

"Judge Casey said his ruling was dictated by a 5 to 4 Supreme Court ruling in 2000, which held that Roe v. Wade protects partial-birth abortion. Future appointments to the Supreme Court will determine whether it remains legal to mostly deliver living premature infants and painfully puncture their skulls. President Bush is determined to ban partial-birth abortion, but John Kerry voted against the ban and has vowed that he will appoint only justices who agree with him."


Earlier in the year, a judge in San Francisco has also found the ban unconstitutional, while a Nebraska court is also considering the ban's legality.

The Partial Birth Abortion ban is the first major restriction placed on abortion rights since the U.S. Supreme Court established the right to choice in its 1973 Roe versus Wade decision.

The government could seek an appeal from Judge Casey, as it did in early August in the decision by the San Francisco Judge. Megan L. Gaffney, a spokeswoman for the U.S. attorney's office in Manhattan, said the government had no comment.