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The government has withdrawn its controversial subpoena for the medical records of scores of women who have had abortions at the New York-Presbyterian Hospital. Seeking a quick resolution by Southern District Judge Richard C. Casey of a challenge to the federal Partial-Birth Abortion Ban Act of 2003, prosecutors Monday told Casey they were withdrawing the subpoena and will forgo a fight over the records before the 2nd U.S. Circuit Court of Appeals. The decision brought to a conclusion the trial evidence in National Abortion Federation v. Ashcroft, 03 Civ. 8695, and paved the way for final arguments before Casey. He is one of three federal judges nationwide hearing challenges to the act brought by abortion providers and abortion rights groups. The other cases are in San Francisco and Lincoln, Neb. In November, Casey issued a temporary restraining order against enforcement of the act, which provides for criminal prosecution, including jail time and heavy fines, for those who perform so-called partial-birth abortions. In those procedures, the fetus is destroyed while being brought through the birth canal. The plaintiff doctors claim the act is so vague that it would criminalize a large number of abortions. On March 18, Casey denied summary judgment to the plaintiffs, saying there was a genuine issue of material fact “as to whether a partial-birth abortion is ever medically necessary to protect a woman’s health.” Then, on March 29, over the objection of hospital attorneys who opposed the request as a violation of the patients’ right to privacy and confidentiality, Casey approved of the subpoena. The issue moved to the 2nd Circuit last week, where, during oral arguments, a three-judge panel expressed skepticism about the government’s need for the records. The circuit returned the case to Casey to allow him to find the hospital in contempt and thereby give the circuit jurisdiction to hear the full dispute. Once the hospital was found in contempt, the case went back to the 2nd Circuit. Further oral arguments were scheduled for May 11. But Monday, in a teleconference with the court, Sheila M. Gowan, chief litigation counsel for Southern District U.S. Attorney David Kelley, told Casey, “There is an important and substantial public interest in having a prompt decision on the constitutionality of the Partial-Birth Abortion Ban Act of 2003. “We believe the records are relevant. We worked hard to obtain them and [from] the very beginning, we have taken steps to preserve patient confidentiality. But a federal statute has been enjoined. A [temporary restaining order] is in place. The trial is over. The evidence is in.” Casey, who had sought to enforce the subpoena as a means of “leveling the playing field,” at the trial, told Gowan “it’s an interesting change in position.” Casey is expected to schedule closing arguments in the case soon.

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