Partial-Birth Abortion Unconstitutional

I’m no legal scholar, but the Constitution wasn’t written in a way that requires a scholar to understand it. The right to kill an unborn child ain’t in there.

And yet some have fooled themselves into believing that is there somewhere. If you squint until the letters are real fuzzy, you can almost make it out, right next to the part about no praying on public property.

U.S. District Judge Richard Casey in Manhattan ruled today that the partial-birth abortion ban passed by Congress is unconstitutional because it doesn’t include an exception to protect the health of the mother. I have yet to see convincing evidence that aborting a child at the moment of delivery offers any significant health or safety benefit to a woman.


This blog illustrates the danger inherent in giving an open channel for an author to vent his feelings without the benefit of an editor or fact-checker. In looking at Judge Casey’s decision, it was easy to reach the (erroneous) conclusion that he is a supporter of abortion rights. That seems not be the case:

Judge Casey was clearly troubled by the morality, ethics, and purported medical justifications of this abortion method. After a three-week trial, he found that D&X abortions “subject fetuses to severe pain.” Indeed, as the unrebutted testimony of a medical expert in infant and fetal pain showed, partial-birth abortion “may subject fetuses beyond twenty weeks’ gestational age to ‘prolonged and excruciating pain,'” especially when the skull is punctured or crushed. He also found that at least some of the doctors who performed these abortions ? many of whom testified at the trial before him ? were not concerned by the pain experienced by the aborted child and do not “convey to their patients that their fetuses may undergo severe pain during a D&X.”

Most importantly, Judge Casey concluded that many of the purported medical reasons that abortionists relied upon to justify the necessity of partial-birth abortion were “false,” “incoherent” or “merely theoretical.” Rejecting the common myth that partial-birth abortion is justified by certain maternal medical circumstances, Casey reasoned: “In no case involving these or other maternal health conditions could [the National Abortion Federation and its testifying witnesses] point to a specific patient or actual circumstance in which D&X was necessary to protect a woman’s health.” Similarly, the many purported safety advantages proffered by abortionists in support of the banned procedure “do not rise above the realm of the hypothetical.”

So how on earth could Judge Casey find such a “brutal” and “barbaric” method of abortion protected by the Constitution? His answer ? however reluctant ? was relatively simple: The Supreme Court made me do it.

In short, Judge Richard Casey, unlike so many activist judges who have forced their political or social agendas into law through rulings based on personal preference rather than the law of the land, Casey based his decision on current law even though he disagrees with it.

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