(CNSNews.com) – U.S. District Judge David F. Hamilton, poised for a Senate confirmation vote today on his nomination to the Seventh Circuit Court of Appeals, blocked Indiana’s “informed consent” abortion law from taking effect for seven years, despite the fact that the Supreme Court had upheld a similar law and that “no court” had restricted such a law since.
 
The case, A Woman’s Choice-East Side Women’s Clinic v. Newman, first came before Hamilton in 1995, when an abortion clinic and Planned Parenthood of Central and Southern Indiana challenged the state’s passage of Public Law 187, an “informed consent” law that required doctors to give women information about the procedure in person, along with information about alternatives, at least 18 hours before the procedure.
 
The plaintiffs argued that making a woman travel to an abortion clinic twice to hear the information “in person” was an “undue burden” that could cause some not to have an abortion. They also said the exception in Public Law 187 for a “medical emergency” was too narrow, and would not likely be held constitutional.
 
Hamilton agreed, granting a preliminary injunction in 1995, and modified it in 1997 after push-back from the state’s Supreme Court, finally made it permanent in 2002, only to be overturned by the same court of appeals he now seeks to join.
 
Sen. Orrin Hatch (R-Utah), a former chairman of the Senate Judiciary Committee, said that Hamilton’s actions were inexcusable.
 
“I do not see any way to explain his decisions in this case except as a willful assertion of his own opinion over what the law required,” Hatch said. “When the Seventh Circuit finally reversed him in 2002, it said that no court anywhere in America had done what Judge Hamilton had done.”
 
The appeals court pointed out that Hamilton was trying to depart from Supreme Court precedent, but had no power to do so from an inferior federal court.
 
‘Unconstitutional burden’
 
Part of the delay came when Hamilton submitted questions on the “medical emergency” exception to the Indiana Supreme Court for clarification and that court disagreed with his view that it was too restrictive. As a result, the defendants asked Hamilton to remove the injunction all together, which he refused.
 
Instead, Hamilton modified the injunction in 1997, and explained that, in his opinion the law would still cause an “unconstitutional burden on a woman’s right to choose to have an abortion.”
 
He wrote that the law could not be enforced, because the plaintiffs were still likely to succeed on the merits of their case, adding that the medical emergency clause was “likely to be useless, patronizing, and annoying.”
 
“For a significant fraction of women affected by the law -- especially those in abusive or potentially abusive relationships--the requirement is likely to prevent them from obtaining abortions they would otherwise choose to have,” Hamilton wrote.
 
In 2001, Hamilton finally conducted a trial on the main lawsuit, and held that reduced numbers of abortions in other states with informed consent laws -- Mississippi and Utah -- were a “burden” on the right to abortion and evidence enough to support his injunction.
 
“The expert evidence showed that the requirement was likely to prevent abortions for approximately 10 to 13 percent of women in (Indiana),” he said, making the injunction permanent.
 
In 2002, however, the Seventh Circuit Court of Appeals quickly overturned Hamilton’s ruling, saying it contradicted the U.S. Supreme Court’s ruling on informed consent in Planned Parenthood of Southeastern Pennsylvania v. Casey.
 
In an opinion authored by the Seventh Circuit’s chief judge, Judge Frank Easterbrook, the appeals court said that the Supreme Court and two other lower courts all had allowed informed consent laws that were virtually the same to be enforced.
 
“For seven years Indiana has been prevented from enforcing a statute materially identical to a law held valid by the Supreme Court in Casey, by this court in Karlin, and by the Fifth Circuit in Barnes,” Easterbrook wrote, citing two other major cases upholding informed-consent laws.
 
Referring to Hamilton, he added, “No court anywhere in the country (other than one district judge in Indiana) has held any similar law invalid in the years since Casey.”
 
The surveys from other states were “not the sort of evidence that permitted an inferior federal court to depart from the holding of Casey that an informed-consent law is valid even when compliance entails two visits to the medical provider,” Easterbrook wrote in the case summary.
 
Sen. Richard Lugar (R-Ind.), who said he has “known David since his childhood,” defended the judge’s informed-consent ruling, saying Monday that Hamilton’s analysis “differs from my own, but his actions were defensible in the context of what lower courts must do in the field of abortion law jurisprudence.”
 
Lugar did not offer any explanation for Hamilton’s attempt to act contrary to the Supreme Court, but said it was “hardly surprising” that judges would come out on opposite sides of the “undue burden” question because the whole abortion issue is “unguided by any constitutional language.”
 
Other Republicans were not as forgiving, however.
 
In floor statement Tuesday, Sen. Jeff Sessions (R-Ala.), the ranking Republican on the Judiciary Committee, called the informed consent decision Hamilton’s “most activist” ruling.
 
“I believe in all sincerity that these views represent a results-oriented, activist philosophy that is hostile to the great American role of a judge in our constitutional system,” Sessions said.
 
“I believe that that disqualifies him for elevation to the court of appeals, and this is one of those extraordinary circumstances where I think the President should be informed of that fact by a vote of this Senate, and that’s why I will not be able to support cloture.”

Sessions said Hamilton was “driving a political agenda” with the decision and “abused his lifetime appointment to block the carrying out of a state law for 7 years, depriving the people of Indiana of their domestic and Constitutional rights until being slapped down by the appellate courts.” 

But Senate Democrats, joined by 10 Republicans, invoked cloture Tuesday, moving Hamilton’s nomination to the floor for debate and a vote, scheduled Wednesday.