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'Partial-Birth Abortion' Law Rejected by Judge

Associated Press
Friday, August 27, 2004; Page A04

NEW YORK, Aug. 26 -- A federal judge declared the Partial-Birth Abortion Ban Act unconstitutional Thursday in the second such ruling in three months, though he called the procedure "gruesome, brutal, barbaric and uncivilized."

U.S. District Judge Richard C. Casey, one of three federal judges across the country to hear simultaneous challenges to the law earlier this year, 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.

_____On the Ruling_____
Opinion and Order: National Abortion Federation v. Ashcroft
Partial Birth Abortion Ban Act

The law, signed last November, banned a procedure known to doctors as intact dilation and extraction and called "partial-birth abortion" by its foes. The fetus is partially removed from the womb, and the skull is punctured or crushed.

Louise Melling, director of the American Civil Liberties Union's Reproductive Freedom Project, said her group was thrilled by 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," she said.

On June 1, U.S. District Judge Phyllis Hamilton in San Francisco found the law unconstitutional, saying it violates a woman's right to choose an abortion. A judge in Lincoln, Neb., has yet to rule. The three judges suspended the ban during the trials.

The three verdicts are almost certain to be appealed to the Supreme Court. "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 D. Ashcroft said Thursday.

The government has appealed the San Francisco ruling, said Monica Goodling, a Justice Department spokeswoman.

The ban, which President Clinton twice vetoed, was seen by abortion rights activists as a fundamental departure from the Supreme Court's 1973 precedent in Roe v. Wade. But the Bush administration has argued that the procedure is cruel and unnecessary and causes pain to the fetus.

At trials earlier this year, doctors testified that of 1.3 million abortions performed annually, the law would affect about 130,000, almost all in the second trimester. Some observers suggest the number would be much lower, 2,200 to 5,000.

In his ruling, Casey said there is evidence that the procedure can have safety advantages for women. 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 before him and Congress showed the outlawed abortion technique to be a "gruesome, brutal, barbaric and uncivilized medical procedure."

Casey, who was appointed to the bench by President Clinton in 1997, was considered by some observers to be the best legal hope for the law's supporters.

At a hearing earlier this year, Casey repeatedly asked doctors whether they tell pregnant women before an abortion that they will rip the fetus apart and that it might feel pain.

"Did you tell them you were sucking the brains out of the same baby they desired to hold?" the judge asked Carolyn Westhoff, a physician who performs or supervises hundreds of abortions a year in Manhattan.

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