The opinions of pro-lifers differ greatly on the constitutionality of the Federal bill:
The Supreme Court is seriously divided between conservative and liberal judges; they often vote as a block. Thus, many recent decisions by the Court have been the result of a split 5 to 4 vote. Wright said "By the time this bill is passed by the Senate and signed into law by President Bush and then works its way up through the court system, it's very likely we'll have one or more new justices on the Supreme Court." 2 During his second term (2004-2008) he did nominate two strict constructioist justices to the U.S. Supreme Court. These were selected, at least in part, because of their philosophical opposition to abortion. Bush had indicated that he would select appointments who were similar to Justices Scalia and Thomas -- the two most conservative justices on the court. This greatly increases the likelihood of a federal Partial Birth Abortion Act being declared constitutional.
The legal challenges:
Simultaneous trials on the constitutionality of the law started in San Francisco, CA, Omaha, NB, and New York, NY on 2004-MAR-22. One of the questions examined was related to the sensing of pain by a fetus. The law asserts that a partial-birth abortion is a "brutal and inhumane procedure" and that "during the partial-birth abortion procedure, the child will fully experience the pain associated with piercing his or her skull and sucking out his or her brain." U.S. District Judge Richard Casey ruled on 2004-MAR-19 that the testimony of Kanwaljeet S. Anand would would be allowed at the New York City trial. Dr. Anand is a pediatrician who specializes in the care of newborns and children. He has conducted research over the past two decades to study whether a fetus can sense pain. He concludes that a fetus at 20 weeks of gestation may sometimes be able to feel pain. 3
If a D&X procedure is done at a time in gestation when the fetus has attained the ability to feel pain, and if no anesthetic is used, then the fetus would apparently feel something when its skull is pierced. Medical professionals have noted that many male newborns do not react when they are circumcised. So, whether a fetus feels pain when its skull is pierced -- and how intense that pain would be -- is not clear. However, because the brain has no pain sensors, the fetus could not feel its brain being removed. The law's assertion appears to be in error here. That is surprising, because the sponsors and framers of the law would certainly have had access to medical experts when they wrote their bill.
California court grants injunction to prevent the law from being applied:
As just about everyone expected, the United States District Court for Northern California imposed an injunction on the federal D&X law on 2004-JUN-01 to prevent it from being applied in any of the 900 Planned Parenthood clinics in the U.S. U.S. District Judge Phyllis Hamilton cited three reasons for the injunction:
Some fundamentalist Christian groups were disappointed at the ruling:
As expected, pro-choice leaders had an opposing view:
New York court declares law unconstitutional:
Judge Richard Casey in Manhattan heard closing arguments on 2004-JUN-22.
As expected, Judge Casey ruled that the law is unconstitutional. He struck down the law on 2004-AUG-26 because it did not have a health clause that would permit a D&X abortion if it was absolutely necessary in order to prevent very serious and long-term damage to the woman's health.
Cathy Ruse, speaking for the U.S. Conference of Catholic Bishops, said that if a health reason were added to the law, then it would allow an abortion for any reason at all: "...psychological, emotional, familial [health],....the woman's age....financial difficulty." That is, she feels that it would be impossible to write an exception clause that would permit D&X abortions in order to prevent catastrophic health problems without allowing a D&X abortion for any reason at all.
Douglas Johnson, speaking for the National Right to Life Committee expects that appeals will be filed in this case, and that it will eventually be decided for the entire country by the U.S. Supreme Court. 7,8
Case in Nebraska also decided:
The Carhart v. Ashcroft trial in Lincoln, NE began in 2004-MAR-29 before U.S. District Judge Richard Kopf. He is the same judge who invalidated Nebraska's partial-birth abortion ban in 1997, a decision which was later confirmed by the U.S. Supreme Court. the case was initiated by the Center for Reproductive Rights on behalf of four doctors who are each licensed to practice in one or more states, including Alabama, Indiana, Iowa, Ohio, Kansas, Maryland, Nebraska, New Jersey, New York, Pennsylvania, South Carolina, Virginia, and Wisconsin. The plaintiffs contend that the federal law is unconstitutional because:
The Center commented: "Dr. Carhart shouldn't have to be back in court, fighting the same fight all over again. Four years ago, the Supreme Court held that 'the findings and evidence support Dr. Carhart.' Nothing has changed since then, except a Congress and President bent on unraveling Roe v. Wade."
Closing arguments were presented on 2004-JUN-02. Judge Kopf issued his ruling on 2004-SEP-08. He agreed with the courts in New York and California by declaring the Partial-Birth Abortion Ban Act to be unconstitutional. He wrote that any law which limits an abortion procedure must include an exception clause to preserve the woman's health if it is threatened. 9,10,11
Jay Sekulow, spokesperson for the American Center for Law and Justice, (ACLJ) said: "In the opinion, the court refused to consider the expert testimony of well-recognized and highly respected medical experts simply because they had not performed abortions. This conclusion is not only legally flawed but shows the hostility the court exhibits to medical experts who have respect for human life." 12
It would seem that the three district judges had no choice but to declare the anti-S&X law unconstitutional. The U.S. Supreme Court overturned a Nebraska state D&X law in the year 2000 because it did not include a health exclusion clause. There does not seem to be any way in which any of the judges could delare the federal law constitutional, because to do so would violate the higher court's decision.
The Family Research Council, a fundamentalist Christian group, commented: "The makeup of the Supreme Court will likely change before it rules on the law - something to keep in mind as the elections draw near. How the Court is composed will be determined by who is President and which Party controls the Senate." 11If the constitutionality of this law were to be evaluated by the present justices of the U.S. Supreme Court, it is likely that they would reject the legislation by a vote of 5 to 4.
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