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The end is near

National | ABORTION TRIAL: As judges hear closing arguments in the partial-birth abortion trials, abortion-industry lawyers hold fast to their reality-denying legal strategies

Issue: "Why the long face, Fidel?," May 1, 2004

In San Francisco, it's all over but the shouting. And whatever the outcome, there will be plenty of that.

Attorneys battling in a San Francisco courtroom over the 2003 federal ban on partial-birth abortion concluded their arguments on April 16. No matter which side emerges victorious-pro-abortion plaintiffs or U.S. Department of Justice attorneys defending the ban-a ruling in the case still leaves an open question as to the fate of the PBA ban nationally.

U.S. District Judge Phyllis Hamilton, after three weeks of testimony in a juryless trial, announced that whether she upholds the ban or permanently enjoins it, her ruling will affect only abortionists in her jurisdiction. In deference to judges hearing similar cases in New York City and Lincoln, Neb., Judge Hamilton said she would not issue a nationwide injunction.

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The trials, particularly the one in New York, have produced an unprecedented and often darkly sensational look at the secretive abortion industry and its killing methods. For much of last week, each proceeding was suspended in its own kind of limbo as combatants waited for the slow-turning wheels of justice to rotate another degree.

Attorneys in the Nebraska case remained in a holding pattern as they wait to mount closing arguments not scheduled until June.

And lawyers in the New York case also waited, as a battle between trial judge Richard C. Casey and New York Presbyterian Hospital unfolded. The judge had ordered hospital officials to produce the medical records of abortion patients so that he could weigh the PBA ban in light of firsthand medical evidence. The hospital, citing patient privacy concerns, refused to comply, and sought refuge at the 2nd Circuit Court of Appeals.

The appeals court ruled that the hospital didn't have standing to file in that particular court-that is, unless Judge Casey were to hold the hospital in contempt for failure to produce the records. To move things along, Judge Casey last week obliged. That put the New York case on hold pending resolution of the privacy issue.

Just prior to the medical-records bottleneck, Justice Department witnesses in New York continued shooting holes in the pro-abortion plaintiffs' argument that partial-birth abortion must remain legal so that women can safely abort abnormal late-term babies. Curtis Cook, a maternal fetal specialist and surgeon who corrects fetal anomalies by operating on unborn babies, told the court that many fetal anomalies actually correct themselves in utero. Most of the others can be corrected with surgery, he added.

The PBA procedure, Dr. Cook said, "is never medically necessary, and potentially poses health and safety risks to the women, including their future ability to carry children to term."

But "women's rights," no matter the harm to children, seemed of primary concern to pro-abortion lawyers who at times seemed indifferent to the humanity of unborn babies. When reviewing the previous week's testimony on fetal pain, for example, Planned Parenthood attorney Eve Gartner said, "The question of whether or not a fetus can experience pain ... is irrelevant as a matter of law."

In her final arguments on April 16, which lasted more than an hour, Ms. Gartner worried repeatedly that the PBA ban would make criminals of doctors who started out doing one kind of abortion and wound up having to "extract" a fetus intact and kill it. "It's like having an elephant in the room with you, while you're doing the abortion" she said, "wondering if some prosecutor is going to interpret it in a certain way."

Department of Justice attorney Scott Simpson replied, "There is obviously no literal elephant in the room. But I will tell you what there is in the room, your honor. There is a baby."

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