Originally appeared in Culture & Cosmos: Volume 1, Number 16
November 18, 2003
Although Judge Richard Conway Casey of the southern district court of New York recently issued a temporary restraining order against the Partial Birth Abortion Ban, his rigorous questioning of the plaintiffs in the case showed his extreme uneasiness with the procedure, which, in his words, leaves "viable babies...either in pieces or they don't have a brain."
The Partial Birth Abortion Ban was signed into law by President Bush on November 5th. The National Abortion Federation (NAF), a trade association of American abortion providers that trains its members how to perform the procedure, filed the case for a restraining order.
NAF's opposition to the ban was centered on the Supreme Court decision in Stenberg v. Carhart, which stated that a Nebraska law banning the procedure was unconstitutional because it did not include a health exception for the mother. The plaintiffs in the current case claimed that "nothing distinguishes this ban from the Nebraska ban in the sense that it [also] lacks a health exception." and should therefore also be deemed unconstitutional.
However, Judge Casey began criticizing major portions of NAF's claims during opening arguments. Casey repeatedly interrupted an NAF lawyer, Susan Talcott Camp, requesting clarification of her statements and openly challenging many of her assertions.
For instance, Camp argued that the judge had to halt the ban since NAF members were "actually mid procedure" while the arguments were before the court. In response, Casey asked, "Do they do this with reckless abandon and disregard for the law deliberately understanding that it might be criminal in a matter of hours?"
At one point, Casey asked if medical professionals had other procedures at their disposal in place of partial birth abortions. When told that "the physicians cannot alter their procedures without harming their patients' health," Casey responded, "Is that right? I didn't read that in the [physician declarations].I don't think they said it cannot be done by another procedure."
Later in the argument, the actual procedure was discussed. The plaintiffs claimed that the "physician performing an abortion is always guided by concern for the woman's medical well-being." Casey quickly retorted that "they also have a concern seeing this as performed at the late term and many of these fetuses are viable. Do they have a concern for the fetus. I don't mean after the procedure. Quite clearly they are not viable then. They are either in pieces or they don't have a brain." Questioned again by Casey if the unborn children are "viable before it all starts," the flustered plaintiffs responded with the ambiguous statement, "Never. There are some, unless we read different papers."
The judge also asked if at that point the child's heart was beating. "Is the heart beating? Does the fetus have feeling?" When Camp answered that she did not know, the judge replied "You didn't care to ask. And there are no studies done on this so when you dismember a leg or an arm from the body do they feel that? Ma'am, it's in the papers right here before us. The government says that the fetus can feel what is being done to it."
The U.S. government, the defendant in the case, outlined the distinctions and differences with the Stenberg case, including the definition of the abortion method's terminology, the difference between this procedure and other procedures, and alternative options still available to abortion providers. "Congress looked at what the Supreme Court's concerns were in Stenberg and redrafted the legislation, narrowed it, made it more specific" and further concluded that "it wasn't medically necessary in appropriate medical judgment for a health exception." However, notwithstanding these arguments, as well as his own explicit reservations, legal precedent forced Casey to issue the temporary restraining order.
Copyright - Culture of Life Foundation. Permission granted for unlimited use. Credit required.
|
