SAN FRANCISCO — On June 1, a federal district court in San Francisco said that doctors can continue the practice of partial-birth abortion, even though the U.S. Congress and President Bush have banned it.

During the trial, Dr. Maureen Paul, a Planned Parenthood doctor, was asked how partial-birth abortion is done once the body of a baby, but not the head, has been born.

“Well, there are two things you can do,” she said. “You can disarticulate at the neck, or what I prefer to do is to just reach in with my forceps and collapse the skull and bring the fetus out intact.” Partial-birth abortions are performed on 20- to 26-week-old children.

The ruling touches on a hot-button election-year issue. Catholic presidential candidate Sen. John Kerry, D-Mass., has voted to keep the practice legal.

The ruling was in a case challenging the federal partial-birth abortion ban signed by Bush last November. Congress passed the ban in October. Two previous versions of a ban were vetoed by President Bill Clinton.

“Once again a federal judge has declared that Roe v. Wade stands for the right to kill a child in the process of being born,” said Cathy Cleaver Ruse, spokeswoman for the U.S. Conference of Catholic Bishops’ Secretariat for Pro-Life Activities, regarding the California decision.

The Planned Parenthood of America v. Ashcroft ruling affects Planned Parenthood Federation of America sites and doctors throughout the country — an estimated 900 sites that perform about half of the country's abortions annually.

U.S. District Judge Phyllis Hamilton in San Francisco, a Clinton appointee, ruled that the ban imposed an “undue burden on a woman's right to choose an abortion.” She added that the question of whether the child feels pain during a partial-birth abortion is “irrelevant.”

Doctors had testified that babies feel pain, though some physicians denied it.

In late March, three federal courts began hearing challenges to the Partial-Birth Abortion Ban Act of 2003.

The Planned Parenthood Federation of America was the plaintiff in the case in California. Other challenges were issued by the American Civil Liberties Union and the National Abortion Federation. Rulings are expected in Nevada and New York in June.

However the remaining courts rule, appeals to the Supreme Court are expected to be the ban's final determinant. Court watchers speculate that while the Nevada judge is likely to rule against the ban, New York is more of an open question.

A Nebraska ban was ruled unconstitutional by the U.S. Supreme Court in 2000, a ruling the San Francisco judge used as a measure for her ruling this month.

Roe Consequences?

Planned Parenthood claimed that the partial-birth abortion ban's reach would ban abortions at 12-15 weeks and, as the first restriction on legal abortion for America, would begin a series of rollbacks.

“Today's ruling is a landmark victory for medical privacy rights and women's health,” Planned Parenthood Federation president Gloria Feldt said in a statement. “The Ashcroft Department of Justice can no longer threaten Planned Parenthood doctors with the daunting specter of criminal prosecution for putting their patients first.”

Richard Garnett, a professor of law at the University of Notre Dame, called the ruling “chilling.”

“It is noteworthy, and a bit unsettling, that in a decision condemning the Partial-Birth Abortion Ban Act for its ‘vague’ terms — terms like ‘living fetus,’ for example — the trial judge repeatedly employs obfuscating euphemisms like ‘fetal demise’ and ‘disarticulation,’” he said. “Although the judge chides Congress for not being specific enough about what is prohibited by the act, one can only conclude that the trial judge does not want her readers to know what it is that she claims is constitutionally protected.”

Peter Augustine Lawler, a professor of government at Berry College in Georgia and a member of the president's commission on bioethics, called the ruling a victory for “extremism.”

“Surely nobody really believes that the single word ‘liberty’ in the Fifth or Fourteenth Amendments prohibits the government from outlawing a practice that lots of reasonable Americans regard as indistinguishable from infanticide,” he said. “Our courts’ inability to tolerate any limits at all to pro-abortion individualism is telling evidence of which sort of extremism now really dominates our public policy.”

Candidates’ Stands

The two men running for president are at odds on the issue of partial-birth abortion.

The presumptive Democratic nominee, John Kerry, voted to keep partial-birth abortion legal.

“John Kerry voted to restrict late-term abortions but only where there was a clear exception for the life or health of women,” said Kerry campaign spokeswoman Stephanie Cutter. “However, George Bush pushed through a different piece of legislation that failed to protect the health of women, and that is what the court struck down. When John Kerry is president, he will appoint judges that are committed to upholding the Constitution, not pursuing an ideological agenda.”

In a statement, President Bush's re-election campaign said: “Today's tragic ruling upholding partial-birth abortion shows why America needs judges who will interpret the law and not legislate from the bench. … John Kerry's judicial nominees would similarly frustrate the people's will and allow this grotesque procedure to continue.”

If the partial-birth-abortion ban is not in effect come November — which is likely — will it be an issue for Catholics at the polls? Maybe, but very possibly not.

“Most Catholics, even practicing ones, are still not aware of what partial-birth abortion is, much less that judges are trying to keep the practice going against the clear will of our elected lawmakers,” said Father Frank Pavone, national director of Priests for Life, which spearheads voter-education drives aimed at Catholics.

“I have no doubt, however, that if practicing Catholics hear clear homilies about the partial-birth abortion procedure, the ban and the activist judges, they will draw the right conclusions,” Father Pavone said. “One of those right conclusions is that they need to elect a president and senators who know what our Founding Fathers meant when they said that Congress makes the laws, not the judges.”

Kathryn Jean Lopez is editor of www.nationalreview.com.