Sept. 12, 2004

Partial-birth abortion ban struck down

The ‘health exception’ can be used to justify even the most horrific procedures.

On Aug. 26 Richard Conway Casey, a federal judge in Manhattan, issued a ruling in which he called partial-birth abortion “gruesome, brutal, barbaric, and uncivilized.” Nonetheless, he believed he was compelled to rule that a ban on the brutal procedure is unconstitutional.

The ban on partial-birth abortion was signed into law by President Bush in November 2003. It was immediately challenged in three federal court districts by the abortion industry. Earlier this summer a judge in San Francisco, writing a decision in strong support of partial-birth abortion, ruled the ban unconstitutional. The Nebraska decision has yet to be issued.

As one reads Judge Casey’s decision, one can almost feel his utter distress about the procedure that was discussed in his courtroom—its ethics, its brutality. He writes: “The fetus’s arms and legs have been delivered outside the uterus while the fetus is still alive. With the fetus’s head lodged in the cervix, the physician punctures the skull with scissors or crushes the head with forceps. . . . The physician then drains the fetus’s skull by suction, or by using a finger, and the skull collapses.”

Judge Casey also explains that the fetus could be moving at the time the skull is crushed and that the procedure can “subject fetuses to severe pain.”

How on earth, one may ask, if the judge was aware of the horrible and painful things done to kill unborn children by partial-birth abortion, could he rule that banning it is unconstitutional?

The simple answer is the Supreme Court and its decisions in Roe v. Wade and Doe v. Bolton (1973) and their progeny, Stenberg v. Carhart (2000).

Roe made abortion legal but said it could be prohibited late in pregnancy as long as there is an exception for the mother’s health. But health, as defined by the Supreme Court in Doe, was nothing more than a farce.

It defined health as including “all factors—physical, emotional, psychological, familial, and the woman’s age.”

Judge Casey called attention to the fact that purported safety advantages offered by the abortionists in support of partial-birth abortion “do not rise above the realm of the hypothetical.” And he noted that their justifications for the procedure were “incoherent,” “false,” or “merely theoretical.”

Still, the judge said he was faced with differing medical opinions and that the Supreme Court in Stenberg has ruled that where differing medical opinions exist in regard to abortion, “a health exception is constitutionally required.”

Despite the sheer inhumanity of the partial-birth abortion procedure, Casey said that lower-court judges who disagree with the higher court nevertheless have a constitutional duty to obey its rulings.

This decision shows clearly how Roe v. Wade and the cases that flow from it have taken out of the hands of the American people the right to prohibit some of the most heinous and painful acts committed on the youngest and most vulnerable in the human family. Roe v. Wade must be overturned.

Gail Quinn is executive director of the Secretariat for Pro-Life Activities of the U. S. Conference of Catholic Bishops.