by Steven Ertelt
LifeNews.com Editor
August 26, 2004
New
York, NY (LifeNews.com) -- A second federal judge has declared the
federal ban on partial-birth abortions unconstitutional, saying that
it lacks a health exception that the Supreme Court said such bans should
have.
U.S. District Judge Richard C. Casey said the nation's high court, in the 2000 Carhart vs. Nebraska case, made it clear that exceptions to allow abortions when needed to preserve the health of the mother must be added to bans on the gruesome abortion procedure.
After the Carhart decision, Congress added a lengthy findings section to the partial-birth abortion ban legislation. The section discussed the years of testimony Congress had accumulated and cited numerous doctors and medical groups contending a health exception is never necessary.
But Judge Casey claimed the findings contradicted itself because it included the views of some doctors who disagree and say the three-day long abortion procedure may be needed in a medical emergency.
Judge Casey said the Supreme Court ruled that
the only way the abortion procedure could be banned was if a "medical
consensus" could be reaching showing that no woman would benefit
from the abortion procedure.
In his opinion, Casey said, "the testimony at trial and before
Congress establishes that D&X [partial-birth abortion] is a gruesome,
brutal, barbaric, and uncivilized medical procedure."
However, "[w]hile 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.
In June, ruling on another of the three separate
lawsuits filed against the ban, U.S. District Judge Phyllis Hamilton
also said the partial-birth abortion ban runs afoul of the Carhart decision.
Earlier this month, the Justice Department announced it would appeal
the San Francisco ruling.
"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.
In that case, Dr. Curtis Cook, an OB/GYN and
Michigan State University professor who specializes in high-risk pregnancies
and pregnancies with complications, told the court he didn't believe
partial-birth abortions were ever medically necessary.
Cook said the American College of Obstetricians and Gynecologists is
on record as saying "there is no situation where they can think
that this is the only option available."
A federal judge in Nebraska is considering the
third lawsuit and is expected to rule against the ban as well. He overturned
the Nebraska ban on partial-birth abortions -- a decision that ultimately
led to the Carhart Supreme Court case.
Judge Casey allowed extensive testimony from medical experts who said unborn children feel intense pain during the abortion procedure and that partial-birth abortions are dangerous for women's health, but he apparently was not swayed.
President Bush signed the partial-birth abortion ban into law in November 2003.
"For years a terrible form of violence has been directed against children who are inches from birth while the law looked the other way,'' Bush told a crowd of 400 pro-life lawmakers and pro-life advocates upon signing the bill.
