When it comes to contentious issues, and certainly when they are taken up by the courts, so much takes place out of the public eye that sometimes we might be lulled into thinking that not much is happening.
Let me just say that when it comes to defending the recently passed Partial-Birth Abortion Ban Act, out of sight definitely does not mean out of mind. The Bush Administration is vigorously defending the law.
Last November the ink had barely dried when the pro-abortionists challenged the law in court. Having prevailed initially in obtaining temporary restraining orders, our benighted opposition perhaps breathed a sigh of relief.
But the Bush Justice Department has not let up from the day the courts in San Francisco and New York and Nebraska enjoined the new law. Its defense, the very model of commonsense and civility, has set the anti-life crowd to howling.
To respond to the challenge to the new law, the Justice Department asked for medical records from hospitals in New York City, Philadelphia, the University of Michigan, and Northwestern Memorial Hospital in Illinois where abortionists have performed partial-birth abortions.
Assistant United States Attorney Sheila M. Gowan is one of the Justice Department lawyers defending the ban. I read the transcript this morning of a hearing that took place in New York February 5 in front of U.S. District Judge Richard Casey. It was a real eye-opener.
Gowan told Judge Casey that the plaintiffs, the National Abortion Federation (NAF), had challenged the law on the grounds that it did not include a “health” exception. She reminded Judge Casey that Congress had concluded “that no health exception was necessary with regard to partial birth abortion because the procedure is never medically necessary to preserve the health of a woman.”
NAF had dutifully trotted out seven abortionists who claimed that there were conditions that had required a partial-birth abortion (which they call a “D&X”) to preserve a woman’s health. Okay, the Bush Administration said, remove all names and personal information (so as to protect patient confidentiality) and show us the medical records.
Gowan offered two reasons why they were needed: to determine whether the abortionists had actually performed the procedure, and “whether there was something about the maternal health that required the performance of that procedure, or was it just the doctor’s preference to perform the procedure.”
When he was questioned by reporters, Attorney General John Ashcroft, noting that “Congress has enacted a law with the president's signature that outlaws this terrible practice,” said, “We sought from the judge authority to get medical records to find out whether indeed the allegation by the plaintiffs, that it's medically necessary, is really a fact.''
Bear in mind that last November this same Judge Casey temporarily blocked the government from enforcing the ban. But his patience with the pro-abortionists’ dilly-dallying was clearly wearing thin.
Talcott Camp, representing NAF, tried to shift the blame to the hospitals for the delays. Judge Casey was not buying it.
Casey said,“[Y]ou have brought the lawsuit. They [the plaintiffs] are going to do whatever it takes to produce hospital records. I will not-–hear me out loud and clear–-I will not let the doctors hide behind the shield of the hospital. Is that clear? I am fed up with stalls and delays.” He added, "They didn't have to be plaintiffs. They chose to be, and now they are going to get it done.”
When Ms. Camp indicated she didn’t know how long it would take to produce the records, Judge Casey asked, “Would you like to have the case dismissed and bring [it back] in five years when you have time to go through the records and get them ready?”
Pro-abortionists found a more sympathetic ear in U.S. Chief District Judge Charles Kocoras of the Northern District of Illinois. He labeled the government's subpoena of records at Northwestern Memorial Hospital "a significant intrusion" of patients' privacy that would provide "little, if any, probative value" to the government's case.
Reportedly, the Justice Department is considering a possible appeal of Kocoras' ruling. Meanwhile, in Philadelphia U.S. District Judge Charles R. Weiner is considering a similar request from Hahnemann University Hospital.
When it comes to contentious issues, and certainly when they are taken up by the courts, so much takes place out of the public eye that sometimes we might be lulled into thinking that not much is happening.