On Tuesday, June 1, 2004, the partial-birth abortion ban was deemed “unconstitutional” by one of three Federal Judges reviewing the law, effectively allowing half of America’s abortionists to continue performing the dangerous operation.
In her 117-page opinion, the Federal judge Phyllis Hamilton ruled the 2003 law, which passed the House, Congress and President Bush, as: an “undue burden” on a woman’s right to have an abortion in the second trimester; “unconstitutionally vague”; and needs an exception for the mother’s health to meet requirements established by the U.S. Supreme Court.
“The government’s interests in protecting potential life and minimizing potential pain to the fetus do not alter this court’s finding regarding the necessity of a health exception.... [T]his court does not find that the government’s asserted fetal interests override the necessity of a health exception to preserve the life and health of the mother,” Hamilton wrote.
Hamilton also expressed that the evidence of the pain the partial birth procedure would cause on the unborn child is not convincing.
“The issue of whether fetuses feel pain is unsettled in the scientific community,” she wrote. “However, it appears to be irrelevant to the question of whether [partial-birth abortion] should be banned, because it is undisputed that if a fetus feels pain, the amount is no less and in fact might be greater in [dismemberment abortion] than with the [partial-birth] method.”
Judge Hamilton’s ruling directly challenged the law President Bush signed in November, which prohibits a procedure that occurs in the second trimester of pregnancy. During the procedure, the abortion doctor delivers the baby intact, feet first, until only the head is left in the womb; he then pierces the base of the baby’s skull with surgical scissors, inserts a catheter into the opening and suctions out the brain.
Her ruling immediately applies to the 900 planned-parenthood clinics across the nation, the city of San Francisco and their advocates.
Planned Parenthood President Gloria Feldt praised Hamilton’s ruling a “landmark victory for medical privacy rights and women’s health.”
“In their zealous pursuit of this dangerous ban and their attempt to seize hundreds of confidential medical records, this administration has squandered vast amounts of U.S. tax dollars to appease anti-choice extremists and fulfill an ideological agenda,” Feldt said in a written statement.
However, pro-family and Christian figures criticized the ruling as immoral and barbaric.
“This is yet one more tragic example of a federal judiciary whose moral compass has been grossly demagnetized,” said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission. “The American people are rightly appalled at the barbarous partial-birth abortion procedure."
“This decision underscores the fact that there are people in our society who are willing to tolerate or affirm dismembering a partially born baby in pursuit of individual choice,” Land said. “This decision brings disgrace on the federal judiciary and further discredits Planned Parenthood, which is obviously supporting this barbarous procedure of a partial-birth abortion.”
Ben Mitchell, a professor at Trinity Evangelical Divinity School and consultant for the ERLC, agreed with Land.
"What about the undue burden on the unborn baby? Having one's brains sucked out after having had scissors plunged into one's head seems like quite a burden. Parial-birth abortion is pure brutality,” said Mitchell, a bioethicist. "Any nation that allows partial-birth abortion cannot be regarded as a civilized culture.”
Two more Federal Court judges – one in New York and the other in Lincoln, Nebraska-are hearing a case similar to that of San Francisco. According to the Baptist Press, Lincoln’s Judge Richard Kopf is likely to strike down the ban; Kopf invalidated a similar ban in Nebraska in 2000. However, supporters of the law are hopeful that the New York Judge Richard Casey would uphold the ban.
Following the ruling, several influential Christian leaders once again emphasized the necessity of a quick action on the part of Congress to uphold the law.
"Congress passed the partial birth abortion ban bill overwhelmingly to stop this barbaric procedure. It is reprehensible that judicial tyranny, such as today's decision, continues unabated in this country,” Roberta Combs, president of Christian Coalition said. “The Senate passed this bill by a margin of 64-34 and the House of Representatives passed the bill by a margin of 282-139. Judge Hamilton continues her anti- family decisions contrary to the overwhelming will of the American people. Last month she allowed a lawsuit to continue which challenges a prohibition of homosexual couples from using an internet-based adoption service. Congress needs to act to challenge judicial tyranny run amok in this country.”
“This ruling demonstrates once again why the judicial nominations issue is so crucial to America’s future,” the ERLC’s Land said. “The president’s judicial nominations, if they weren’t being obstructed by the Senate, would be addressing this issue, because the president is nominating people to the bench who believe we ought to have a society in which every life is affirmed.
“I still believe that partial-birth abortion will be seen by history as the Uncle Tom’s Cabin of the abortion movement,” Land said. “As Uncle Tom’s Cabin put a human face on the evil institution of slavery, thus making its continuance intolerable to the American people, so partial-birth abortion has put a human face on the evil of abortion and will make abortion on demand intolerable to a majority of the American people.”
