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The federal judge who last week struck down the congressional ban on the so-called partial-birth abortion procedure went farther than she needed to in overturning the law and seems intent on forcing an appeals court to address the ban squarely on its merits. On June 1, U.S. District Judge Phyllis Hamilton in San Francisco declared unconstitutional the Partial Birth Abortion Ban Act, passed by Congress in 2003. In doing so, she took the side of plaintiff Planned Parenthood Federation of America, which challenged Attorney General John Ashcroft’s enforcement of the act. But Hamilton didn’t base her decision on just one part of Planned Parenthood’s multipronged attack against the government. Rather, Hamilton’s ruling, which came after a three-week trial and a month of deliberation, dissected each point raised by both sides. She also weighed the credibility of witnesses, finding the government’s decidedly lacking. “It is apparent to this court, having heard the testimony of the 13 expert witnesses in this case, and having reviewed the deposition testimony of an additional six expert witnesses, that the oral testimony before Congress was not only unbalanced, but intentionally polemic,” Hamilton wrote. The ruling could have been much narrower. But, recognizing the significance of what she was doing, Hamilton herself acknowledged her intention to be thorough: “Although the court has already found that the act is unconstitutional because it poses an undue burden and because it is vague, given the time and resources expended by the parties and this court, and the extensive evidence presented on the issue, the court is compelled to reach the issue regarding a health exception,” Hamilton wrote on Page 31 of the opinion. The order continues for 86 more pages. Lawyers who worked on the case say the exhaustiveness should help insulate Hamilton from claims that she is an “activist” judge who decided the case because of political beliefs. It will also make it more difficult for higher courts to overturn the ruling without addressing the merits of the ban. Beth Parker, a Bingham McCutchen partner who represents Planned Parenthood, says Hamilton’s ruling will force appeals courts to be just as thorough if they agree to tackle what has become one of the most controversial issues in the long battle over abortion. Hastings College of the Law professor David Faigman, who wrote an amicus curiae brief in the case, agrees that Hamilton should be insulated from the “activist” smear. “I think the court here adhered very closely to Supreme Court precedent and carried out its constitutional obligation in exemplary fashion,” Faigman says. “She’s covering her flank very well. Virtually any argument that might be made either politically or legally, she’ll be covered.” Although not filed on behalf of either party, Faigman’s brief recommended that Hamilton give a “hard look” at the facts and research behind the law, which former President Bill Clinton vetoed twice. The law mandates jail time for doctors who perform certain abortions. The Department of Justice press office issued a short and strongly worded release saying its lawyers were reviewing Hamilton’s order and that the DOJ “will continue to devote all resources necessary to defend this act of Congress, which President Bush has said ‘will end an abhorrent practice and continue to build a culture of life in America.’” The case in front of Hamilton, who was appointed by Clinton in 2000, is one of three challenging the government’s enforcement of the act. Trials in all three began March 29 after Hamilton and the other judges temporarily blocked enforcement of the act. The other trials, in district courts in New York and Nebraska, are scheduled to end soon. Hamilton could have blocked enforcement of the ban nationwide. Instead, she limited her permanent injunction to Planned Parenthood, its affiliated doctors, and public health care providers in San Francisco, which intervened in the case. Parker says she expects the government to appeal to the U.S. Court of Appeals for the 9th Circuit. Hamilton found the act unconstitutional on several grounds. She said it placed an undue burden on a woman’s right to choose, that it was vague about which medical procedures the government was trying to outlaw, and that it failed to provide an exception when the health of a mother is at risk. During trial, much of the testimony in Hamilton’s courtroom consisted of dueling medical experts. In her order, the judge said Planned Parenthood’s doctors were more credible. She criticized the government for putting on witnesses who were inexperienced with abortion and politically biased. “The court finds that their objections to entirely legal and acceptable abortion procedures color, to some extent, their opinions on the contested . . . procedure,” wrote Hamilton. Hamilton reserved much of her criticism for the congressional fact-finding behind the act. In what Planned Parenthood saw as an attempt to circumvent earlier Supreme Court rulings on abortion, Congress determined that the procedure it wanted to outlaw was never medically necessary. “Congress has not drawn reasonable inferences based on substantial evidence, and its findings are therefore not entitled to substantial deference,” Hamilton wrote. Congress only passed the law after it, like the government’s trial lawyers, put on witnesses who were politically motivated against abortion and were not even qualified to testify about it, Hamilton said. Jeff Chorney is a staff writer for The Recorder, the American Lawyer Media newspaper in San Francisco, where this article first appeared.

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