Judge Casey: Pro-Life, Pro-Law?
Judge Richard Casey, the federal judge who struck down Congress' ban on partial-birth abortion Aug. 25, is well known to Catholics. Especially the ones who go to daily Mass with him.
An alumnus since the 1950s of Holy Cross and Georgetown University Law School, he once received the Blessed Hyacinth Cormier O.P. Medal at the Angelicum in Rome for his “outstanding leadership in the promotion of Gospel values in the field of justice and ethics.” Those who know him say he is devoted to the rosary.
And bishops and cardinals are among those who know him. Catholic New York reports that Casey and New York Cardinal Edward Egan “have been friends for years and have visited Lourdes together three times.” So how could a man like Casey overrule a ban on partial-birth abortion?
The reason Casey did so is that the U.S. Supreme Court, in Stenberg v. Carhart, said he had to. Casey's decision was forced by predetermined boundaries set for him by the decisions of a higher court. He said the “law of the land” required him to invalidate the ban. But the way he did it is important.
There is much to indicate that Casey knows the horror of abortion and his duty to do whatever he can do within the law to end it.
Look carefully at what Casey said and did from the moment he received the case in his court. He must have been convinced from the beginning that he would have to rule against it, given Stenberg v. Carhart. But he also knew that his decision would be appealed, likely to the Supreme Court — which actually does have the authority to reverse its previous decisions.
The Supreme Court is a court of appeal. When it receives a case, it doesn't build a fresh record — it reviews the lower court's record. So Casey built a record for it.
And what a record it was.
Complaining that Congress didn't hear from enough doctors, he put doctors on the stand and put their testimony on the record.
Where before, abortion-industry propaganda questioned the very existence of partial-birth abortion, Casey has it all out in the open now.
Here's his court's definition of the procedure: “The physician grasps the fetus's lower extremity with fingers or forceps and pulls the fetus through the cervix and vagina until its head is lodged in the cervical opening. At this point, the fetus's arms and legs have been delivered outside the uterus while the fetus is still alive. With the fetus's head lodged in the cervix, the physician punctures the skull with scissors or crushes the head with forceps. … The physician then drains the fetus's skull by suction, or by using a finger, and the skull collapses.”
He added, “The fetus could be moving at the time the skull is crushed.” Sadly, however, the “fetus dies when its brain is either drained or sucked from the skull,” and then is removed wholly from the mother's body.
Casey grilled doctors on whether the unborn child feels pain, and their shocking answers were the fodder of pro-life columns for weeks.
Casey's decision followed predetermined boundaries, but the record he is handing to the high court is all his own. For that, we can be grateful.
Catholics might be tempted to fight “bad guy” tyrannical judges with “good guy” tyrannical judges who ignore the law and do what they please. We should pray to the patron saint of lawyers, St. Thomas More, when we are thus tempted — and watch A Man for All Seasons for inspiration.
In that famous play, a friend tells More he would “cut down every law in England” to get the devil. More's famous reply: “And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? … I'd give the Devil benefit of law, for my own safety's sake.”
It's only through the rule of law that we will end abortion.
Casey's decision also comes close to Election Day. That's when we the people can have our say on partial-birth abortion — by voting for legislators who support the ban and who will approve judges like Casey who refuse to legislate from the bench.
That's also the day we can vote for a presidential candidate.
With Supreme Court retirements looming, the president will soon get to exercise the ultimate check and balance on the makeup of the court. We want a president who will appoint justices who will restore the right to life to its rightful place in the Constitution.
- September 5-11, 2004