Apellate court strikes down Virginia partial-birth abortion ban

Washington D.C., May 22, 2008 / 12:03 pm

The U.S. Court of Appeals of the 4th Circuit on Tuesday for a second time declared unconstitutional a Virginia law banning partial-birth abortions, saying the law is more restrictive than a federal ban approved by the U.S. Supreme Court last year.

The appellate court has never allowed Virginia’s Partial Birth Infanticide Act of 2003 to take effect, but the Supreme Court ordered the court to reexamine the law in light of the high court’s decision in Gonzales v. Carhart, the Washington Post reports.

The Virginia law bans “intact dilation and extraction” abortions, which are used after about 12 weeks into a pregnancy. 

In a standard dilation and extraction (D&E) abortion, the unborn child is dismembered in the womb.  In an intact D&E abortion, the unborn child is partially delivered and its skull is crushed to make its removal easier.

The law was struck down by a 2 to 1 decision of the three-judge panel.  The majority said the only way a doctor could ensure that he would not be prosecuted under the law would be to stop performing abortions.  In some cases, an “accidental” intact D&E abortion can take place when a doctor is performing a standard D&E procedure, which remains legal.

The majority in the appellate panel’s decision said a doctor acting in “good faith” to comply with the law could accidentally violate it.  Unlike the Virginia law, the federal law protects an abortionist who does not intend to perform an intact D&E procedure.

"The Virginia Act imposes an undue burden upon a woman's right to choose a pre-viability second trimester abortion," Judge M. Blane Michael wrote, according to the Washington Post. He was joined by Judge Diana Gribbon Motz.

In his dissent, Judge Paul V. Niemeyer accused the majority of "ignoring explicit language and undertaking its course to find ambiguity in the Virginia Act so as to be able to strike it down."

"With a troubling opinion, the majority now seeks to circumvent the Supreme Court's ruling in Gonzales v. Carhart, unwittingly inviting the Supreme Court to spell out in this case that Virginia's statute is likewise constitutional, because in the nature and scope of conduct prohibited, it is virtually identical to the federal statute," he wrote.

A spokesman for Virginia Attorney General Robert F. McDonnell said McDonnell had not decided whether to ask the entire 4th Circuit Court to reconsider the case or to petition the Supreme Court to hear it.