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A Manhattan federal judge Thursday became the second federal judge in the nation to find the Partial-Birth Abortion Ban Act of 2003 unconstitutional because it makes no exception to protect the health of the mother. Despite finding that the type of abortion banned by the act was a “gruesome, brutal, barbaric and uncivilized medical procedure,” Southern District Judge Richard C. Casey said in National Abortion Rights Federation v. Ashcroft, 03 Civ. 8695, that he could not “ignore that the evidence indicates a division of medical opinion exists about the necessity of D&X to preserve a woman’s health.” Therefore, Judge Casey said, enforcement of the act must be enjoined under Stenberg v. Carhart, 530 U.S. 930 (2000), in which the U.S. Supreme Court ruled unconstitutional a Nebraska ban on so-called partial-birth abortions because it did not provide an exception if doctors believed the procedure was necessary to preserve the health of the mother. The Partial-Birth Abortion Ban Act of 2003 was intended to ban abortions whereby the fetus is partly removed from the womb and then destroyed. Opponents of the procedure, which is also known as “D&X” for “dilation and extraction,” call it partial-birth abortion because of the passage of part of the fetus into the birth canal. Sponsors of the act argued that the destruction of the fetus at that point, through the puncturing or crushing of the skull, is the killing of a “live fetus” and should subject doctors to criminal prosecution. The law defines partial-birth abortions as procedures “in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery.” Physicians who perform the procedure are exposed to a felony prison term of up to 2 years as well as civil penalties. Doctors in hundreds of Planned Parenthood clinics around the country, where roughly half of more than 1 million abortions in the country are performed each year, brought the challenge. Judge Casey heard weeks of testimony on the divergent opinions of the medical community and repeatedly questioned witnesses on issues such as whether the fetus feels pain during a D&X. Lawyers for the Justice Department argued that the fetus does indeed feel pain and that the procedure is both unnecessary and inhumane. Arguing for the government before Judge Casey, Assistant U.S. Attorney Sean H. Lane said the procedure kills a “partially born fetus just inches from birth.” In his argument, plaintiffs’ lawyer A. Stephen Hut said the law, “in its stunning breadth would remove the range of abortion alternatives available to women in the second trimester.” Judge Casey, however, declined to reach the issue of a woman’s right to choose abortion, saying he was deciding the case based only on the medical exception. SIMILAR RULING In June, a federal judge in San Francisco found the act unconstitutional, although on different grounds. In that case, U.S. District Court Judge Phyllis Hamilton said, “The Act poses an undue burden on a woman’s right to choose an abortion,” a rationale that was also asserted by the majority in Stenberg. Abortion rights advocates in the bitter dispute over the law believe it is an attempt by anti-abortion forces to change the rhetorical and legal landscape in their 30-year fight to overturn Roe v. Wade, the 1973 Supreme Court decision that legalized most abortions. Both sides are still awaiting a decision from a third federal judge in Lincoln, Neb., on a similar challenge, but even if the Nebraska court reaches a conclusion similar to Judges Casey and Hamilton, both sides have long believed it is certain that the Supreme Court will decide the issue. For now, Judge Casey said, Stenberg is the law. “The Supreme Court in Stenberg 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 said yesterday “A division of medical opinion exists, according to Stenberg, according to this Court, and even according to the testimony on which Congress relied in passing this law. Such a division means that the Constitution requires a health exception.” Before trial earlier this year, Judge Casey refused to grant summary judgment for the plaintiff doctors, saying he “must weigh the factual findings that Congress reached after years of hearings,” and he needed a trial “to evaluate the truth of Congress’s factual determination that partial-birth abortion is never medically necessary to preserve a woman’s health.” He concluded yesterday that the split of medical opinion meant he was required to follow Stenberg. “ Stenberg obligates this Court and Congress to defer to the expressed medical opinion of a significant body of medical authority,” he wrote. “While medical science and ideology are no more happy companions than Roe and its progeny have shown law and ideology to be Stenberg remains the law of the land. Therefore, the Act is unconstitutional.” ‘STENBERG’ The Stenberg case, decided 5-4, drew on Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). The Supreme Court in that opinion reiterated that a woman has a right to choose to terminate her pregnancy before the fetus becomes viable, that state laws enacted to protect fetal life are unconstitutional where they impose an undue burden on a woman’s right to choose abortion and — critical to both the ruling in Stenberg and Judge Casey’s decision yesterday — the state may regulate and even ban abortions to further its interest in “the potentiality of human life” except “where it is necessary, in appropriate medical judgment, for the preservation of the life and health of the mother.” Judge Casey worked through the majority, concurring and dissenting opinions in Stenberg in his 92-page opinion released yesterday. He reviewed the testimony of 16 expert witnesses presented by the plaintiffs at trial and five offered by the government in defense of the act. His findings of fact were notable for sharp criticism of plaintiffs’ experts. “Notwithstanding” evidence that fetuses do feel pain during D&X, he said “some of Plaintiffs’ experts testified that fetal pain does not concern them, and that some do not convey to their patients that their fetuses may undergo severe pain during a D&X.” “Additionally, some of Plaintiffs’s experts do not make full disclosures to women about what D&X entails,” he said. “Furthermore, the Government’s expert witnesses reasonably and effectively refuted Plaintiffs’ proffered bases for the opinion that D&X has safety advantages over other second-trimester abortion procedures.” The judge said he did not believe many of the “purported reasons” that the procedure is medically necessary, calling them “theoretical or false.” Nonetheless, he found that a “significant body of medical opinion” holds that D&X has “some safety advantages” over other procedures. “The Court also finds that Congress did not hold extensive hearings, nor did it carefully consider the evidence before arriving at its findings,” he said. “Congress only held two hearings after the Supreme Court issued its opinion in Stenberg.” Besides Lane, assistant U.S. attorneys Sheila Marie Gowan, Joseph Anthony Pantoja and Elizabeth Wolstein represented the government. Representing the plaintiffs were 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 Hut, Amy Kreiger Wigmore and Kimberly Parker of Wilmer, Cutler Pickering Hale and Dorr in Washington D.C.

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