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New York Times (USA), August 27, 2004

U.S. Court in New York Rejects Partial-Birth Abortion Ban

A federal judge in New York ruled yesterday that a federal law banning a rarely used method of abortion was unconstitutional because it did not exempt cases where the procedure might be necessary to protect a woman's health.

The ruling, by Judge Richard Conway Casey, came in a challenge brought by the National Abortion Federation and seven doctors to a November 2003 law that bans the method known as partial-birth abortion.

Judge Casey determined that the Supreme Court required, in a decision four years ago, that any law limiting abortion must have a clause permitting doctors to use a banned procedure if they determine that the risk to a woman's health would be greater without it.

The Supreme Court ruling "informed us 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," Judge Casey wrote. The Supreme Court's opinion struck down a state law in Nebraska.

The New York case, which was argued by lawyers from the American Civil Liberties Union, was one of three cases challenging the partial-birth abortion law. On June 1, a federal judge in California ruled the law unconstitutional on similar but broader grounds than Judge Casey cited. The Justice Department has appealed that decision. A challenge in Nebraska is still in federal court there.

The ruling is a new blow to legislation that abortion opponents have hailed as one of their most significant victories. President Bush strongly backed the bill.

Attorney General John Ashcroft said in Washington yesterday that the Justice Department would continue to defend the law vigorously and would appeal the ruling. A department statement quoted President Bush, who had said the law would "end an abhorrent practice and continue to build a culture of life in America."

The ruling by Judge Casey, in United States District Court for the Southern District of New York, makes it considerably less likely that the Bush administration will be able to implement the law as it is currently written. It also will shift the focus of the abortion debate back to the Supreme Court and its cornerstone 1973 ruling in Roe v. Wade upholding a women's broad right to abortion.

At issue is a procedure, generally used in the second or third trimester of pregnancy, that involves partially extracting an intact fetus from a woman's uterus and then killing it by emptying the brain from the skull. Also known as D and X, for dilation and extraction, it has been used in cases of rare or unanticipated severe medical complications of pregnancy.

After listening to doctors describe the procedure in detail during 16 days of hearings this spring, Judge Casey wrote that it is "gruesome, brutal, barbaric and uncivilized." He cited medical experts' testimony that the procedure subjects the fetus to "severe pain."

He also dismissed much of the testimony by A.C.L.U. witnesses, saying he did not believe that many of their "purported reasons for why D and X is medically necessary are credible; rather they are theoretical or false."

But Judge Casey was even more pointedly critical of Congress, saying that it had voted for the law without seriously examining the medical issues. "This court heard more evidence during its trial than Congress heard over the span of eight years," the judge wrote.

He found that Congress, in writing the law, had ignored furious dissension among doctors over the safety and necessity of the disputed abortion. The lawmakers had overlooked testimony in their own hearings, he said, and based the bill on the conclusion that partial-birth abortion is "never necessary."

The law includes an exception if there is a risk to a woman's life, but not a broader exception if a doctor decides that there is a risk to a patient's health. A violation is a felony punished with up to two years in jail and fines up to $250,000.

The A.C.L.U. suit did not center on defending the procedure, but on contesting the limitations in the law on doctors' and women's ability to determine medical care.

"This is a great day for women's health, because it means the Constitution holds that doctors will treat women's health and not Congress," said Talcott Camp, an A.C.L.U. lawyer in the case.

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