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A federal judge has refused to declare unconstitutional the law that bans so-called partial-birth abortions. Southern District of New York Judge Richard Conway Casey has said he would not grant summary judgment in favor of physicians and a prenatal services provider attacking the Partial-Birth Abortion Ban Act of 2003. The groups say the law should be struck down because it makes no exception for the health of the mother. The decision paves the way for a trial on March 29 in National Abortion Federation v. Ashcroft. Casey said, “A genuine issue of material fact exists as to whether a partial-birth abortion is ever medically necessary to protect a woman’s health.” On Nov. 5, Congress adopted the act, which made it a felony to perform a late-term abortion unless it is needed to protect the life of the mother. A violator faces a prison term of up to two years and civil penalties. A day after the act was adopted, Casey granted a temporary restraining order on behalf of the federation and seven physicians who filed suit. The plaintiffs maintain that the lack of a health exception renders the act unconstitutional. They also are challenging the law as vague, an undue burden on the right to reproductive choice and a violation of women’s right to equal protection under the law. On the issue of the health exception, the plaintiffs cited Stenberg v. Carhart, in which the U.S. Supreme Court found that a Nebraska ban on such abortions was unconstitutional. The court based its ruling on the grounds that, first, the state law lacked a maternal health exception and, second, that it placed an undue burden on reproductive choice by banning the procedure used for second-trimester abortions. Casey said the first holding in Stenberg is the one that matters to the plaintiffs, who sought summary judgment in National Abortion Federation v. Ashcroft. “The [ Stenberg] court held that because there existed ‘responsible differences’ among ‘highly qualified, knowledgeable experts on both sides of the issue’ as to whether partial-birth abortion offered safety advantages for some women over other alternatives, the Constitution mandated a maternal health exception,” Casey said. Specifically, he said, the court found that a health exception must exist because the Nebraska law, in the words of the Supreme Court, “altogether forbids D & X” — the induced dilation of the cervix followed by the removal of the fetus from the uterus through the cervix “intact, i.e., in one pass, rather than in several passes.” While obligated to follow the Supreme Court’s lead, Casey said he also “must weigh the factual findings that Congress reached after years of hearings,” including that a late-term abortion is never necessary to preserve a woman’s health. “These findings create a genuine issue of material fact, thus precluding summary judgment,” Casey said. The judge wrote, “To date, this court has been presented only limited material lying outside the congressional record,” and, therefore, he was unable “to evaluate the truth of Congress’s factual determination that partial-birth abortion is never medically necessary to preserve a woman’s health.” Attorneys for neither side would comment on the ruling. Assistant U.S. Attorneys Sheila Marie Gowan, Sean H. Lane, Joseph Anthony Pantoja and Elizabeth Wolstein represent the government. Louise Frances Melling, Susan Talcott Camp, Julie Ellen Sternberg and Jennifer Dalven of the American Civil Liberties Union Foundation; Rebekah Diller of the New York Civil Liberties Union Foundation; and A. Stephen Hut Jr., Amy Kreiger Wigmore and Kimberly Parker of Wilmer Cutler & Pickering in Washington, D.C., represent the plaintiffs. This article originally appeared in the New York Law Journal , a publication of American Lawyer Media.

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