Federal Appeals Court Declares Virginia Abortion Ban Unconstitutional
May 21, 2008
Public Release Date: 21-May-2008
On Tuesday, a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., declared a Virginia law banning so-called "partial-birth" abortion unconstitutional, the Washington Post reports. In a 2-1 decision, the panel said the law infringed on a woman's constitutional right to abortion (Barnes, Washington Post, 5/21).
According to the New York Times, the appellate court struck down the law in 2005 on different grounds, but the U.S. Supreme Court ordered the lower court to review the ruling after the high court upheld the federal Partial Birth Abortion Act last year.
In Tuesday's ruling, the 4th Circuit Court panel found that the Virginia ban is more restrictive than the federal ban. Both laws prohibit physicians from using a procedure -- known as intact dilation and extraction, or intact D&E -- in which an intact fetus is partially removed from the woman's body. Both measures allow physicians to perform a standard dilation and evacuation procedure, which, according to the Times, involves "dismembering the fetus in the uterus."
Judge Blane Michael in the majority opinion wrote that the key difference between the Virginia and federal laws is that the federal law would charge physicians with violating the ban only when the physician intended to perform intact D&E from the outset, while the Virginia law would charge physicians who perform the procedure by mistake (Liptak, New York Times, 5/21). According to the Post, Virginia officials have acknowledged that "accidental" intact D&E is possible when physicians perform standard D&E.
Michael and Judge Diana Gribbon Motz in the majority opinion wrote, "A doctor attempting in good faith to comply with the Virginia act will accidentally violate the act in a small fraction of cases." They said the doctor "never knows prior to embarking on any standard D&E procedure whether a violation will occur."
Michael added that the only way doctors could avoid the "risk of criminal prosecution, conviction and imprisonment" would be to stop performing second-trimester abortions, which would impose an "undue burden" on women seeking the procedure (Washington Post, 5/21).
Judge Paul Niemeyer in the dissenting opinion said Virginia's law "is virtually identical to the federal statute" (O'Dell, AP/Google.com, 5/20). He added that the majority opinion represents "nothing less than a strong judicial will to overturn what the Virginia Legislature has enacted ... and what, in materially undistinguishable terms, the Supreme Court has upheld as constitutional" (New York Times, 5/21).
Niemeyer added that the majority is "unwittingly inviting the Supreme Court to spell out in this case that Virginia's statute is likewise constitutional" (Washington Post, 5/21).
According to the AP/Google.com, the state has two weeks to request the full appeals court to review the decision and 90 days to appeal Tuesday's ruling to the Supreme Court (AP/Google.com, 5/20). Tucker Martin, a spokesperson for state Attorney General Bob McDonnell (R), said that the attorney general's office is "considering all possible courses of action" and that the office is "extremely disappointed" by the ruling (New York Times, 5/21).
Comments
Nancy Northup -- president of the Center for Reproductive Rights, which brought the challenge before the court -- praised the ruling.
"Federal courts are seeing through these thinly veiled attempts to undermine a woman's ability to obtain an abortion," Northup said in a statement, noting that a federal appeals court also recently struck down a Michigan ban on the procedure (Vicini, Reuters, 5/20).
Stephanie Toti, a lawyer for CRR who represented abortion providers in the case, said the court recognized that the Virginia law "is extreme -- that it effectively banned the most common method of second-trimester abortion, and that is unconstitutional" (AP/Google.com, 5/20).
Victoria Cobb, president of the Family Foundation of Virginia, said, "It is disappointing that yet again just two people can thwart the will of the people, the action of a legislature and simple justice for nearly born children" (Washington Post, 5/21).
The majority opinion and dissent are available online (.pdf).
Posted thanks to our friends at the National Partnership for Women & Families. The Daily Women’s Health Policy Report is published for http://www.nationalpartnership.org, a free service of the National Partnership for Women & Families, by The Advisory Board Company. © 2007 The Advisory Board Company. All rights reserved.
