Judge Casey’s ruling in last week’s “partial-birth” ban case is now online (pdf file).
Although the ruling is a victory for the pro-choice side – as I wrote before, if the pro-lifers can’t win this case in Judge Casey’s court, they probably can’t win it anywhere – Casey also steered testimony to emphasize the alleged cruelty and the undisputed grossness of the D&X procedure. By doing that, he created a trial record that will be useful to any future Supreme Court that wants to overturn Stenberg. (Stenberg is the Supreme Court decision which ruled that PBA bans that are overbroad, or that lack an exemption to protect the woman’s health, are unconstitutional).
Judge Casey, who didn’t hide his disgust at the D&X abortion procedure, ruled against the PBA ban based on a single issue, the lack of a health exemption:
As a court of law, ours is neither to devise ways in which to circumvent the opinions of the Supreme court nor to indulge delay in the full implementation of the Court’s opinions. Rather, our responsibility is to follow faithfully its opinions, because that court is, by constitutional design, vested with the ultimate authority to interpret the Constitution.
Congress shares that same responsibility.
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. A division of medical opinion exits, 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.
Stenberg obligates this Court and Congress to defer to the expressed medical opinion of a significant body of medical authority. 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.
The pro-lifers in Congress had attempted to get around Stenberg with a duplicitous “finding of fact” that “partial-birth” abortions are never necessary. Judge Casey dismissed Congress’ findings, quoting the same Clarence Thomas argument that I quoted months ago.
Although Judge Casey was not required to rule on the other legal issues in this case – if the PBA ban creates an undue burden on women, and if the definition of PBAs in the ban is overly broad – he could have if he wanted to. By not addressing the overbroadness issue, Casey was able to turn the trial into a show trial against the D&X abortion procedure – even though it’s not clear that the D&X procedure is what the PBA ban actually bans. (The court in California ruled that the definition was both too broad and too vague.) If a future Supreme Court overturns Stenberg, I expect they’ll do it drawing heavily on the testimony Casey brought forth in this trial.