September (Web-only) 2004

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Federal judge in Nebraska: "No reasonable person" could support Partial-Birth Abortion Ban Act
Their ultimate judgment was the same—the Partial-Birth Abortion Ban Act is unconstitutional because it doesn't have a "health of the mother" clause—but the tone is radically different between today's federal court decision and last month's similar decision by a judge in New York. In the latter, U.S. District Judge Richard C. Casey made his decision with dragging feet, calling partial-birth abortion "a gruesome, brutal, barbaric, and uncivilized medical procedure" and many of the arguments against it "theoretical or false."

Today's decision from U.S. District Judge Richard Kopf, however, slams Congress for saying that the procedure is never necessary.

"According to responsible medical opinion, there are times when the banned procedure is medically necessary to preserve the health of a woman and a respectful reading of the congressional record proves that point," he wrote. "No reasonable and unbiased person could come to a different conclusion. … The long and short of it is that Congress arbitrarily relied upon the opinions of doctors who claimed to have no (or very little) recent and relevant experience with surgical abortions, and disregarded the views of doctors who had significant and relevant experience with those procedures. It is unreasonable to ignore the voices of the most experienced doctors and pretend that they do not exist."

Don't bother reading the 474-page decision, however. (Kopf begins his opinion with an apology for its length, saying, "I pity the poor appellate judge who has to slog through this thing.") Ultimately, while it's disappointing that three out of three federal judges ruled the ban unconstitutional, this ...