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'Partial-birth' abortion ban dealt a setback

US judge condemns procedure as 'brutal,' but faults federal act

NEW YORK -- A federal judge declared the Partial-Birth Abortion Ban Act unconstitutional yesterday in the second such ruling in three months -- even though he called the procedure "gruesome, brutal, barbaric, and uncivilized."

US District Judge Richard C. Casey, one of three federal judges across the country to hear simultaneous challenges to the law earlier this year, faulted the ban for not containing an exception to protect a woman's health, something the Supreme Court has made clear is required in laws prohibiting particular types of abortion.

The law, signed last November, banned a procedure known to doctors as intact dilation and extraction and called partial-birth abortion by abortion foes. The fetus is partially removed from the womb, and the skull is punctured or crushed.

Louise Melling, director of the American Civil Liberties Union's Reproductive Freedom Project, said her group was thrilled by the ruling.

"We can only hope, as we have decision after decision after decision striking these bans, saying they endanger women's health, that the legislatures will finally stop," she said.

On June 1, US District Judge Phyllis Hamilton in San Francisco also found the law unconstitutional, saying it violates a woman's right to choose an abortion. A judge in Lincoln, Neb., has yet to rule. The three judges suspended the ban while they held the trials.

The three verdicts are almost certain to be appealed to the Supreme Court.

"We are in the process of the appeal of these issues now, which tells you exactly what we're doing and where we're going," Attorney General John Ashcroft said yesterday.

The government has already appealed the San Francisco ruling, said Monica Goodling, a Justice Department spokeswoman.

The ban, which President Clinton twice vetoed, was seen by abortion rights activists as a fundamental departure from the Supreme Court's 1973 precedent in Roe v. Wade. But the Bush administration has argued that the procedure is cruel and unnecessary and causes pain to the fetus.

At trials earlier this year, doctors testified that of 1.3 million abortions performed annually, the law would affect about 130,000, almost all in the second trimester. Some observers suggest the number would be much lower -- 2,200 to 5,000.

In his ruling, Casey said that there is evidence that the procedure can have safety advantages for women. He said the Supreme Court had made it clear that "this gruesome procedure may be outlawed only if there exists a medical consensus that there is no circumstance in which any women could potentially benefit from it."

Casey, who was appointed to the bench by Clinton in 1997, was considered by some observers to be the best legal hope for the law's supporters.

"We were on pins and needles on this one," said Gloria Feldt, president of Planned Parenthood Federation of America. "The judge was very aggressive in his questioning and very transparent in his articulation of his personal views on the matter. Fortunately, he chose to uphold the law."

During a hearing earlier this year, Casey repeatedly asked doctors whether they tell pregnant women prior before an abortion that they will rip the fetus apart and that it might feel pain.

"Did you tell them you were sucking the brains out of the same baby they desired to hold?" the judge asked one doctor who supervises abortions in Manhattan.

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