Pro-Lifers Lose "Partial-Birth" Abortion Ban Case

Via Ms Musings, a Federal Judge in New York has stuck down congress’ “partial-birth” abortion ban. If you’d like a short, intelligent summary of the case, I recommend Kaisernetworks’s report.

This is the second of three lawsuits over the PBA ban to be decided (the first, in San Francisco, was also a pro-choice victory). The third lawsuit, in Nebraska, is also likely to find that the PBA ban is unconstitutional.

The loss in New York is significant to pro-lifers because New York’s Judge Casey was clearly sympathetic to pro-life arguments, and made no effort to hide his disgust at the so-called PBA procedure. (According to the Times, Judge Casey earlier today referred to the procedure as “gruesome, brutal, barbaric and uncivilized.”). If the pro-lifers can’t defend a PBA ban successfully in Judge Casey’s courtroom, it’s unlikely they can defend it at all.

Judge Casey was, however, too honest to overlook the fact that the PBA ban clearly is unconstitutional according to the Supreme Court’s Stenberg v Carhart decision.

However, that could change if Bush wins the 2004 election and gets a chance to replace O’Connor, Stevens, Breyer, Ginsburg, or Souter on the Supreme Court. If that happens, the Court will probably overturn their Stenberg v Carhart decision and find PBA bans to be constitutional.

FederalAbortionBan.org has more information on all three cases. I haven’t yet found a link to the text of Judge Casey’s opinion, but when (if) I do, I’ll update this post with the link.

This entry posted in Abortion & reproductive rights, \"Partial Birth\" Abortion. Bookmark the permalink. 

7 Responses to Pro-Lifers Lose "Partial-Birth" Abortion Ban Case

  1. 1
    lucia says:

    I can’t help being amused by Jack Fowler’s comment that Judge Casey is a “Double-Jebby grad”. (For those unfamiliar with Catholic jargon, Fowler uses the term “Jebbie” to refer to Jesuits. )

    Anyway, based on Fowler’s comments, Judge Casey seems to be a devout Catholic, who who recognizes that, when on the bench, judges must apply civil law. (Each person can decide whether or not they think the allusion to the Roman Catholic Judge Taney is meaningful.)

  2. 2
    J Stevenson says:

    I think the judge did a great job in applying the law in this case. If he did not apply the rule of law as affirmed in Stenberg he would be an “activist judge”, whether he would be labeled that way or not we will never know.

    In balancing the safety of the mother and the states interest in its potential citizen, I think everyone would be better served if there was greater emphasis on an education requirment. As my wife and I sat in the OB/GYN office, I was surprised how little information was provided about late term abortions. As we sat there contemplating terminating our recent pregnancy (19 wks) no one provided any information regarding D&E or D&X my wife would soon undergo. She had got the medication to begin the Dilation. The only information we received was the doctor’s counsult — “First I will dilate your cervix — when you come back in a few days I will then extract the “tissue” from your uterus” you will be asleep during the entire procedure and will need a ride home.” I read all about the procedure prior to us going to the doctor, but would not talk to her about what I knew. I did not want to influence her decision (her body/choice) — a third child would cause a myriad of challenges for our family.

    I think the best course would be to allow PBA, but educate women (in an objective fashion) on the procedure prior to them beginning the process of Dilation — perhaps the counsultation could go like this:

    “A “dilation and evacuation” (D&E) involves dilation of the cervix, the doctor then pulls a portion of the fetus through the cervix into the birth canal. I may pull the arm, leg, or skull into your vagina prior to removing your fetus. I will remove at least some fetal tissue using surgical instruments, in some cases it will require complete instrumental dismemberment of the fetus, but usually it will only require partial dismemberment to facilitate evacuation from the uterus.”

    The understanding among many Pro-Life people (not the crazy religious ones, but the rational ones — are there any?) is that women go off willy-nilly and get an abortion without knowing exactly what it is they are getting. Our experience indicates that if they don’t know what their choices are and the ramifications of each choice, they certainly will not find out at the Ob/Gyn. How can someone make an informed choice without all the information available to make that choice?

  3. 3
    Trish Wilson says:

    Amp, didn’t you write awhile back that anti-abortion activists purposefully leave out the exemption that takes the mothers’ health into consideration because they know that without it their bans are unconstitutional? That way, when these bans are struck down anti-abortion activists can keep the abortion issue alive? I’ve heard that argument from lots of pro-choice activists and it makes a lot of sense.

  4. 4
    Ampersand says:

    Yup, I did argue that – here’s the post. I still beleive that, too – that’s what the Republicans did for many years, and will keep on doing if Kerry wins the election.

    But if Bush wins the election and changed the supreme court, they’d be willing to accept that as an outcome, too.

  5. 5
    jstevenson says:

    Amp, didn’t you write awhile back that anti-abortion activists purposefully leave out the exemption that takes the mothers’ health into consideration because they know that without it their bans are unconstitutional? That way, when these bans are struck down anti-abortion activists can keep the abortion issue alive?

    Don’t they keep the issue alive by driving those moving billboards with a picture dead, bloody baby in a sterile trashcan, before a junior high school, during lunch?

    I never heard that before, but it would seem counter-productive. But, I guess they can claim the judiciary is “activist” and against the will of the people. :-)

  6. Pingback: Pacific Views

  7. Pingback: Pacific Views