August 27, 2004,
If ever you needed convincing about the importance of this November's presidential election to the future of our republic, Thursday's decision by a federal judge in Manhattan striking down the federal ban on partial-birth abortion should certainly accommodate your needs. In his ruling in National Abortion Federation v. Ashcroft, Judge Richard Conway Casey held that the "law of the land" required him to invalidate a ban on an abortion procedure which he (and 345 members of Congress) found to be "gruesome, brutal, barbaric and uncivilized." Judge Casey's opinion demonstrates just how far off the constitutional cliff the Supreme Court pushed by increasingly hungry "civil-rights" activists has driven this country. It is Exhibit Number One to show how crucial this election is to recapturing constitutional sanity in the Supreme Court and the lower federal courts.
In November 2003, President Bush signed the Partial Birth Abortion Ban Act, which prohibits a method of abortion in which a living child is partially delivered to a point outside the mother and deliberately killed by the abortionist. Judge Casey's description of the abortion method validates his finding of its inhumanity. In the most common form of the partial-birth-abortion "procedure," labeled by its practitioners as breech "dilation and extraction" ("D&X"):
the physician grasps the fetus's lower extremity with fingers or forceps and pulls the fetus through the cervix and vagina until its head is lodged in the cervical opening. At this point, 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.
As Judge Casey explains, "the fetus could be moving at the time the skull is crushed." Sadly, however, the "fetus dies when its brain is either drained or sucked from the skull," and then is removed wholly from the mother's body.
Congress tried several times to enact a partial-birth-abortion ban but repeatedly ran up against the veto pen of President Clinton. The ban finally signed by President Bush sought to prohibit partial-birth abortions in most circumstances, but it was far from the absolute prohibition that many of its opponents have falsely claimed it to be. Instead, it allows partial-birth abortions in the unlikely event that such an abortion method "is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself." But because Congress found that a broader exception for the "health" of the mother was not required in any medical circumstances, the ban does not contain such a health exception.
Judge Casey was clearly troubled by the morality, ethics, and purported medical justifications of this abortion method. After a three-week trial, he found that D&X abortions "subject fetuses to severe pain." Indeed, as the unrebutted testimony of a medical expert in infant and fetal pain showed, partial-birth abortion "may subject fetuses beyond twenty weeks' gestational age to 'prolonged and excruciating pain,'" especially when the skull is punctured or crushed. He also found that at least some of the doctors who performed these abortions many of whom testified at the trial before him were not concerned by the pain experienced by the aborted child and do not "convey to their patients that their fetuses may undergo severe pain during a D&X."
Most importantly, Judge Casey concluded that many of the purported medical reasons that abortionists relied upon to justify the necessity of partial-birth abortion were "false," "incoherent" or "merely theoretical." Rejecting the common myth that partial-birth abortion is justified by certain maternal medical circumstances, Casey reasoned: "In no case involving these or other maternal health conditions could [the National Abortion Federation and its testifying witnesses] point to a specific patient or actual circumstance in which D&X was necessary to protect a woman's health." Similarly, the many purported safety advantages proffered by abortionists in support of the banned procedure "do not rise above the realm of the hypothetical."
So how on earth could Judge Casey find such a "brutal" and "barbaric" method of abortion protected by the Constitution? His answer however reluctant was relatively simple: The Supreme Court made me do it. Judge Casey reasoned that the Supreme Court's 2000 decision in Stenberg v. Carhart compelled him to invalidate the federal ban where plaintiffs were able to produce some doctors (supported by some medical associations) willing to testify that "D&X has some safety advantages...over D&E for some women in some circumstances." According to Judge Casey "however hypothetical and unsubstantiated by scientific evidence" the abortionists' testimony at trial was, he was constitutionally compelled by the Supreme Court to accept it. You ask "why?" Judge Casey responds: "The Supreme Court has held that when there is...a division of medical opinion" regarding the relative safety of an abortion method when compared to other available methods, "a health exception is constitutionally required." A procedure is "medically necessary," concludes Judge Casey, when "a significant body of medical opinion...believes a procedure may bring with it greater safety for some patients." The Supreme Court's constitutional standard, Judge Casey notes, "is so easy for physicians to satisfy, and so difficult for the Government to overcome."
The government has more than sufficient grounds to appeal Judge Casey's ruling. His reliance on purely hypothetical health risks, for instance, may be too broad a reading of the Supreme Court's rule. But whether right or wrong, Casey's ruling demonstrates the extraordinary burden the Supreme Court has placed on the government in justifying any restriction on abortion methods no matter how cruel, inhumane, and painful. One has to wonder whether the Court would be as skeptical of existing federal laws that regulate laboratory testing on animals in order to prevent unnecessary cruelty to the smallest of creatures. But where human life is involved, the Court has placed the thumb squarely on the opposite side of the scales of justice. If the doctors' hypothetical claims of greater safety "turn out to be wrong," says the Supreme Court, "the exception will simply turn out to have been unnecessary" damn the inhumanity and excruciating pain.
Before anyone gets ready to picket Judge Casey's chambers, take a deep breath. Judge Casey is an honorable and humble man who understands his place in the legal cosmos. "While Congress and lower courts may disagree with the Supreme Court's constitutional decisions," he concludes, "that does not free them from their constitutional duty to obey the Supreme Court's rulings." In other words, chalk another one up to the Supreme Court. Whether he ultimately read their decisions properly or not, Judge Casey was not going to stretch their law to fit his personal convictions.
So Casey's ruling that a morally abhorrent and gruesome method of abortion is protected by the constitution, our country's most sacred legal document demonstrates how much ground has been lost since the Supreme Court first engrafted a right to abortion into the constitution in Roe v. Wade. And with as many as three or four current justices possibly retiring in the next presidential term, it shows how much longer the slide can be with the wrong decision in November.
Shannen W. Coffin is a former deputy assistant attorney general for the Civil Division of the U.S. Department of Justice. He coordinated the government's defense of the partial-birth-abortion-ban act in National Abortion Federation and two other simultaneous trials in Nebraska and New York. He and his country are deeply indebted to the dedicated career public servants who participated in those trials.