Federal judge says partial-birth abortion ban unconstitutional

Seattle Times ^ | June 02, 2004 | David Kravets

[swilhelm73]

SAN FRANCISCO — In a ruling with coast-to-coast effect, a federal judge declared the Partial-Birth Abortion Ban Act unconstitutional today, saying it infringes on a woman's right to choose. U.S. District Judge Phyllis Hamilton's ruling came in one of three lawsuits challenging the legislation President Bush signed last year.

She agreed with abortion rights activists that a woman's right to choose is paramount, and that it is therefore "irrelevant" whether a fetus suffers pain, as abortion foes contend.

"The act poses an undue burden on a woman's right to choose an abortion," the judge wrote.

The challenge was brought by the Planned Parenthood Federation of America, and the ruling applies to the nation's 900 or so Planned Parenthood clinics and their doctors, who perform about half the 1.3 million abortions done each year in the United States.

Federal judges in New York and Nebraska also heard challenges to the law earlier this year from other abortion-rights forces but have yet to rule.

Planned Parenthood lawyer Beth Parker welcomed the ruling, saying it sends a "strong message" to the Bush administration "that the government should not be intruding on very sensitive and private medical decisions."

In a statement, the Bush re-election campaign said: "Today's tragic ruling upholding partial birth abortion shows why America needs judges who will interpret the law and not legislate from the bench. ... John Kerry's judicial nominees would similarly frustrate the people's will and allow this grotesque procedure to continue."

Justice Department spokeswoman Monica Goodling said the government "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 Kerry campaign had no immediate comment.

The law, signed in November, represented the first substantial federal legislation limiting a woman's right to choose an abortion. Abortion rights activists said it ran counter to three decades of Supreme Court precedent.

It banned a procedure that is known to doctors as intact dilation and extraction, but is called "partial-birth abortion" by abortion foes. During the procedure, the living fetus is partially removed from the womb, and its skull is punctured or crushed.

Justice Department attorneys argued the procedure is inhumane, causes pain to the fetus and is never medically necessary. A government lawyer told the judge that it "blurs the line of abortion and infanticide."

Abortion proponents argued, however, that a woman's health during an abortion is more important than how the fetus is terminated, and that the banned method is often safer than a conventional abortion, in which the fetus is dismembered in the womb and then removed in pieces.

In her ruling, the judge said it was "grossly misleading and inaccurate" to suggest the banned procedure verges on infanticide.

Rep. Steve Chabot, R-Ohio, the chief sponsor of the House bill, said the banned abortion method "has no place in a civilized society," and predicted the Supreme Court would decide the outcome.

"Regardless of this decision from San Francisco, partial-birth abortion remains a horrific practice that snuffs out innocent life seconds before the baby takes its first breath," Chabot said.

The measure, which President Clinton had twice vetoed, was seen by abortion rights activists as a fundamental departure from the Supreme Court's 1973 precedent in Roe v. Wade. Abortion advocates said the law was the government's first step toward outlawing abortion.

Violating the law carries a two-year prison term.

Late last year, Hamilton, a Clinton appointee, and federal judges in New York and Lincoln, Neb., blocked the act from being enforced pending the outcome of the court challenges. They began hearing testimony March 29.

Doctors have construed the Supreme Court's decision in Roe. v. Wade to mean they can perform abortions usually until the 24th to 28th week after conception, or until the "point of viability," when a healthy fetus is thought to be able to survive outside the womb. Generally, abortions after the "point of viability" are performed only to preserve the mother's health.

The Nebraska and New York cases are expected to conclude within weeks. The outcomes, which may conflict with one another, will almost certainly be appealed to the Supreme Court.

The New York case was brought by the National Abortion Federation, which represents nearly half the nation's abortion providers. The Nebraska case was brought by a few abortion doctors.

The U.S. Supreme Court had overturned a Nebraska partial-birth abortion law because it did not allow the banned procedure even when a doctor believes the method is the best way to preserve the woman's health.

Congressional sponsors said the ban would outlaw only 2,200 or so abortions a year.

But abortion providers testified the banned method can happen even at times when doctors try to avoid it, such as when they attempt to remove the fetus from the womb in pieces.

They warned that the law could be used to ban almost all second-trimester abortions, which account for about 10 percent of all abortions in the United States.

[swilhelm73]

A sterling reason why Pres Bush *must* be re-elected.

[rudypoot]

Wow, I was totally blind-sided by this. Who would've thought that a judge could act like a little king. Especially in this day and age. /sarcasm

[steplock]

What a pitiful reporter ...

An blatant error on the very first line.... " today ".....

and it is dated 2 June, 2004 (today)

Didn't this occur before today? Or do I just have pre-cognitive abilities?

[SpaceBar]

Saw this in the local paper this morning along with a photo of the woman federal judge responsible for the decision. The photograph looked right out of a mean clipped-haired lesbo liberal yearbook. Ruth Bader-Ginsberg's separated at birth sistah.

[chainsaw]

saying it infringes on a woman's right to choose.

The woman also has the right to not get pregnant in the first place. That is her legitimate choice. This ruling had better be appealed.

[mcshot]

Each time I attempted a response I had to censor it.

So

darn her all to heck and the guy who appointed her.............

mc

[supercat]

Perhaps Ron Paul needs to introduce legislation to the effect that all no federal court authorized by Congress shall have the authority to use stare decesis to justify any decision which could not be justified without it.

If the system worked properly, judges would sometimes bend the rules for truly exceptional circumstances, but the fact that the circumstances driving a case were exceptional would nullify its precedential value. Unfortunately, exceptional cases are allowed to redefine the rules.

[SpaceBar]

I thought I might add that according to the numbers quoted in the article, Planned Parenthood can exterminate an equivalent number of humans in ten years that are generally accepted to have died as a result of the nazi holocaust.

[MarkBSenior]

Let's see.

Take a human being (partially) outside the birth canal and crush its head without even the benefit of anesthesia.

Then sell the bodies to labs for experimental use.

Sounds fair and democratic (heh) and moral and exactly the way a civilized society should conduct itself in treating with its children.

The Nazis had nothing on the current culture of death.

[Rebelbase]

The Judge is a Clinton appointee. Nothing more to say.

[Smartass]

"I thought I might add that according to the numbers
quoted in the article, Planned Parenthood can exterminate
an equivalent number of humans in ten years that are
generally accepted to have died as a result of the nazi
holocaust."

Since Roe v. Wade:
The last statistic and still counting was 40 million lost
and murdered souls. 10% were "Partial Birth" Murders.
Adolf Hitler couldn't have done it better then
"Planned Murderhood."

[torchthemummy]

"The Kerry campaign had no immediate comment."

Kerry is f$@C$#D! He can side with the radicals in his party and a disturbing minority of voters or side with the overwhelming number of the voting public, pro-choice and pro-life alike, that are dead-set against this.

I think the response from the Kerry camp should have been "The Kerry campaign will have no comment ever."

[tom h]

"U.S. District Judge Phyllis Hamilton ... agreed with abortion rights activists that a woman's right to choose is paramount, and that it is therefore "irrelevant" whether a fetus suffers pain."

Enough said. The honorable "judge" telegraphed her political leanings with the above written statement.

See the photo and bio below. I'm a graduate of Stanford from the same year and I must say I'm not surprised, but a bit ashamed at the actions of one of my classmates.

Phyllis J. Hamilton

Born June 12, 1952 in Illinois, Judge Hamilton received her B.A. from Stanford University in 1974 and her J.D. from University of Santa Clara School of Law in 1976.

Judge Hamilton served as Deputy Public Defender at the California State Public Defender's Office in San Francisco (1976-1980), Administrative Judge for the United States Merit Systems Protection Board in San Francisco (1980-1985), and Court Commissioner of the Municipal Court in Oakland (1985-1991).

[Nasher]

Unlike Kerry's reaction, I hope that President Bush holds a big press conference and rips the courts for the radical agenda that they are trying to impose.

W. needs to keep this in the spotlight as the liberal media will happily ignore this 'ruling'.

[Casloy]

Correct me if I am wrong, but isn't this ruling not something the left really wants? This will guarantee the case will go before the Supreme court and if they find the partial birth abortion ban constitutional then it opens the floodgates for bans on other kinds of abortions.

To interpret her ruling it seems to me one has to assume that if a mother wants to cut off the baby's head just after it exits the birth canal and before it starts starts breathing then she is within the law. Or does the baby's body have to be outside the birth canal and the head still inside when the decapitation is done for it to be legal? All these details make it very difficult to commit infanticide legally. We must get rid of all these silly barriers to good old baby killing.