Judge Casey's Difficult Decision

NEW YORK — Pro-lifers across America were shocked that a devout Catholic judge in New York ruled the ban on partial-birth abortion to be unconstitutional.

Judge Richard Casey, a man known to attend daily Mass in Manhattan, in an Aug. 26 decision described partial-birth abortion as “gruesome, brutal, barbaric and uncivilized.” But he also held that the “law of the land” required him to invalidate the ban because it did not include a health exception for mothers.

“We pro-lifers are profoundly disappointed,” said Chris Slattery, president of the New York City crisis pregnancy center Expectant Mother Care. “I had high hopes in the back of my mind during the trial, especially because of his aggressive questions. Here was a Roman Catholic who I thought could give the cause the benefit of a doubt.

It makes you wonder, when you have a highly intelligent Catholic who can't find a way to be pro-life. When can a Catholic judge make a difference?”

Casey's office said he does not comment on cases on which he ruled.

While some Catholic pro-life activists in New York questioned whether Casey should be allowed to receive Communion, pro-life Catholics in the legal profession were less critical of the decision. The common observation was that as a federal district court judge, Casey had little room to maneuver.

“People are surprised and confused,” said Cathy Cleaver Ruse, director of planning and information for the pro-life secretariat of the U.S. Conference of Catholic Bishops. “I can understand that. But he was following his role as a lower court judge. The Supreme Court has issued mandates regarding abortion, and, as a lower court judge, he does not have the power to overturn them, even if he wanted to. I'd be surprised if anyone faulted him from the standpoint of Catholicism.”

Msgr. William Smith, professor of moral theology at St. Joseph's Seminary in Yonkers, N.Y., suggested that Casey may have “per-formed a real service by forcing this information into the public.”

“I'd be slow to read the riot act to him,” Msgr. Smith said. “The real riot act is with the Supreme Court.”

In fact, some observers believe that Casey may have been trying to give the Supreme Court a strong message with his ruling.

“What he could have been doing,” said Princeton University's Robert George, “is saying to the Supreme Court, ‘You have created a ridiculous body of law. When you get it on appeal, here's your chance to straighten it out.’”

George is the McCormack professor of jurisprudence at Princeton. He believes that applying Catholic teaching regarding public officials is complicated in this case.

“Catholic teaching can be applied in a straightforward way to legislators because they create laws. But judges are asked to interpret laws, not create them. For a lower court judge, the teaching doesn't apply in a direct way. Catholics are not allowed to lie about interpreting the law, even if it means upholding something like abortion or slavery.” Shannen Coffin agrees. He's the deputy assistant attorney general for the U.S. Department of Justice who coordinated the government's defense of the Partial-Birth Abortion Ban Act in three simultaneous trials in California, New York and Nebraska until returning to private practice.

“The notion that he (Casey) is not a good Catholic is absurd,” Coffin said in an interview. “He's a judge who took an oath under God to uphold the law. He understands his place within the legal cosmos. As a federal district court judge, he is bound by Supreme Court decisions.”

The U.S. government has already appealed a similar decision from a judge in San Francisco. It will likely appeal Casey's ruling as well. Coffin's primary criticism of Casey's ruling was that perhaps he had construed the law “too narrowly.” But if he did, Coffin said, “he did so with a great deal of good faith.”

Casey's decision came after a three-week trial in the case known as National Abortion Federation v. Ashcroft. President George W. Bush signed the Partial Birth Abortion Ban Act into law in November 2003. Abortion-rights activists immediately protested that it conflicted with three decades of Supreme Court precedents and filed to declare the act unconstitutional.

The Supreme Court case which figured heavily in Casey's decision was Stenberg v. Carhart of 2000. of 2000.

“In Stenberg, the Supreme Court was looking at a Nebraska state statute that banned partial-birth abortion,” Ruse said. “The only exceptions it allowed were for the life of the mother. The Supreme Court said that the life exception was not good enough. There must be a health exception, too.”

With the Stenberg ruling, the new standard was that a health exception is constitutionally mandated when a significant body of medical opinion believes an abortion method “may” be safer for “some” women. Casey heard testimony from doctors who came down on both sides of the question. Some testified that this procedure was never necessary, and others argued that it could be helpful sometimes.

“Basically, you had dueling doctors,” Ruse said. “Casey was bound to apply this crazy Stenberg standard that a division of opinion mandates a health exception.”

As Casey wrote, “The Supreme Court has held that when there is…a division of medical opinion” regarding the relative safety of an abortion method, “a health exception is constitutionally required.”

Professor George, though a believer in Casey's good faith, said he would have ruled the case in a different manner.

He believes there was room under the Roe v. Wade precedent to uphold the Partial Birth Abortion Ban as valid. “As I read the Carhart opinion, which is horrible, Casey reads it as saying that in any difference of opinion, the ruling must go in favor of the abortion procedure,” George said. “I think it doesn't have to be read that way. I'd say that if conflicting evidence is supplied by the witnesses, the law authorizes the judge to decide the question in favor of whom he thinks it should go to, in light of the evidence.”

Discovering the Facts

During the trial, Casey's aggressive questioning of partial-birth abortion proponents frequently was noted in news accounts.

“Throughout the trial, his repulsion for the act was pretty clear,” Ruse said.

One needs only to read through the transcripts of the trial and the decision itself to see how Casey felt about the issue at hand.

“Judge Casey was clearly troubled by the morality, ethics, and purported medical justifications of this abortion method,” Coffin wrote in National Review Online on Aug.

27. “After a three-week trial, he found that D&X abortions ‘subject fetuses to severe pain.’”

“D&X” is shorthand for dilation and extraction, the most common form of partial-birth abortion.

Casey noted that many abortion-ists did not care about the pain experienced by a child being aborted, nor did they convey to their clients that their babies undergo severe pain. He also concluded that many of the justifications given by abortionists for performing partial-birth abortions were “false,” “incoherent” or “merely theoretical.”

A press release by the U.S. bishops' conference on Aug. 26 stated: “Testimony from the ACLU's team of abortion doctors about their methods for killing children in the fifth and sixth months of pregnancy revealed partial-birth abortion to be every bit as real and as horrible as the pro-life community claimed.”

Sabrina Ferrisi writes from Jersey City, New Jersey.

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