Federal abortion law struck down

Ban on certain procedure unconstitutional, lacks any exception for health

The Nation

August 27, 2004|By Patricia Hurtado | Patricia Hurtado,NEWSDAY

NEW YORK - A federal judge struck down the Partial Birth Abortion Ban Act as unconstitutional yesterday.

U.S. District Court Judge Richard Casey labeled the procedure gruesome, but he 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 decision by Casey, who granted a permanent injunction preventing the act from going into effect, is the latest against a law that was signed by President Bush in November.

The ban has never gone into effect.

In June, a federal judge in California declared the act unconstitutional. A decision is pending in a Nebraska federal court.

Appeal filed in Calif.

Attorney General John Ashcroft said in Washington yesterday that the Justice Department has filed an appeal in the California case to the 9th Circuit Court of Appeals.

He said that appeal should cover issues raised in the New York case.

The act, which passed amid controversy, bans a procedure known as intact dilation and extraction in which a fetus is partially removed from the womb and its skull is crushed or punctured.

In issuing his decision, Casey challenged Congress' conclusion that there is no significant body of medical opinion arguing that the procedure has safety advantages for women.

"This court heard more evidence during its trial than Congress heard over the span of eight years," he wrote.

"Even the government's own experts disagreed with almost all of Congress' factual findings."

Ruling praised

Seven physicians, the National Abortion Federation, the American Civil Liberties Union and the New York Civil Liberties Union brought the New York case.

Yesterday, they hailed Casey's verdict.

"The Supreme Court has been very clear that a health exception is required," said Rebekah Diller, director of the Reproductive Rights Project at the NYCLU.

"We're extremely pleased that the court recognized that the ban was a danger to women's health."

Casey noted in his ruling that in passing the act, Congress might not have agreed with prior Supreme Court rulings, such as Stenberg vs. Carhart, that uphold a woman's right to such a procedure if medically necessary.

"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," he wrote.

"The Supreme Court in Stenberg informed us that this gruesome procedure may be outlawed only if there exists a medical consensus that there is no circumstance in which any woman could potentially benefit from it," Casey wrote.

"Stenberg obligates this court and Congress to defer to the expressed medical opinion of a significant body of medical authority ... therefore, the act is unconstitutional," he wrote.

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