Judge Richard Conway Casey of the Southern District of New York has joined judges in San Francisco and Nebraska in enjoining the partial-birth abortion ban, despite his own convictions on the issue:
While Casey concluded that such abortions are “gruesome, brutal, barbaric and uncivilized,” he said the law banning them is unconstitutional because it doesn’t contain an exception to protect the health of the mother. A previous U.S. Supreme Court ruling held that the procedure can be outlawed “only if there exists a medical consensus that there is no circumstance in which any women could potentially benefit from it,” Casey said.
Casey – an alum of both my college and my law firm, I should add – is a sort-of Clinton appointee; he was originally nominated by George H.W. Bush at the recommendation of Al D’Amato but had his nomination blocked by Senate Democrats. President Clinton renominated him in 1997, making him the first blind man appointed to the federal bench. I haven’t seen the opinion and I am, of course, disappointed with the result, but I have to respect the fact that Judge Casey went against his own expressed policy preferences in following what appears to be the Supreme Court’s lead on this issue. It’s unfortunate that that sort of judicial restraint tends to be a one-way street.