By NANCY FRAZIER O’BRIEN, CNS | Published June 3, 2004
The June 1 decision by a federal judge in San Francisco declaring the Partial-Birth Abortion Ban Act unconstitutional “makes a mockery of the Constitution,” said the U.S. bishops’ chief pro-life spokeswoman.
Cathy Cleaver Ruse, director of planning and information in the bishops’ Secretariat for Pro-Life Activities, said that by her decision U.S. District Judge Phyllis Hamilton “has declared that Roe vs. Wade stands for the right to kill a child in the process of being born.”
“The American Medical Association says this procedure is never medically necessary,” Ruse added in a June 1 statement. “To say that it is a fundamental constitutional right makes a mockery of the Constitution.”
But a legal expert said the decision, which placed an injunction on enforcement of the law in San Francisco and in some 900 Planned Parenthood clinics nationwide, was “the first stop on a lengthy legal road that ends at the Supreme Court of the United States.”
Jay Sekulow, chief counsel of the American Center for Law & Justice, said he was “confident that the national ban on this horrific procedure ultimately will be declared constitutional.”
Hamilton was the first of three District Court judges considering appeals of the Partial-Birth Abortion Ban Act this spring. Judges in Lincoln, Neb., and New York City were expected to rule later this year.
The federal law signed by President Bush in November was being challenged for several reasons, including its lack of a clause providing an exception when a pregnant woman’s health would be endangered by using a different type of abortion.
Supporters of the ban say that a health provision would have rendered the legislation virtually meaningless because of the broad definition of maternal health given by the U.S. Supreme Court in 1973 in its decisions to legalize abortion.
The law bars a type of abortion that is usually performed in the second or third trimester. In the procedure, a live fetus is partially delivered, then the skull is punctured to sever the brain stem before the whole body is delivered. Under the law, doctors who perform such abortions, which are also known to physicians as “intact dilation and extraction,” are subject to up to two years in prison.
In her 120-page ruling, Hamilton said the law “poses an undue burden on a woman’s right to choose an abortion” and “may force pregnant women to undergo a procedure that is less safe.”
But Douglas Johnson, legislative director of the National Right to Life Committee, said Hamilton’s “deep personal hostility to the law has been evident throughout the judicial proceedings” and is evident in her decision.
“Other district and appellate judges also will be heard from during the months ahead,” Johnson added. “It is the U.S. Supreme Court that will ultimately decide whether our elected representatives can ban the practice of mostly delivering a living premature infant and then puncturing her skull. A one-vote shift on the Supreme Court would allow the ban on partial-birth abortions to be upheld.”
A White House statement on the decision called partial-birth abortion “an abhorrent procedure that must be ended once and for all” and said Bush “strongly disagrees” with Hamilton’s ruling. “The administration will take every necessary step to defend this law in the courts,” it added.
A statement from the campaign of Sen. John F. Kerry, the presumptive Democratic nominee for president, said the Massachusetts senator supported restrictions on late-term abortions “only where there was a clear exception for life or health of women.”
The partial-birth abortion ban supported by Bush, however, “failed to protect the health of women,” the campaign statement said. “When John Kerry is president he will appoint judges that are committed to upholding the Constitution, not pursuing an ideological agenda.”