Virginia AG To Ask Full Appeals Court To Review Decision Declaring Abortion Ban Unconstitutional

Main Category: Abortion
Article Date: 04 Jun 2008 - 6:00 PDT

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Virginia Attorney General Bob McDonnell (R) plans to ask the full 4th U.S. Circuit Court of Appeals to review a decision by a three-judge panel of the court declaring Virginia's ban on so-called "partial-birth" abortion unconstitutional, the AP/Washington Post reports. In a statement announcing the decision, McDonnell said, "It is my belief that Virginia's partial-birth abortion ban, passed overwhelmingly by the people's elected representatives in the General Assembly, is constitutional" (AP/Washington Post, 5/30).

On May 20, the court said Virginia's law is more restrictive than the federal abortion ban (PL 108-105). Both laws prohibit physicians from using a procedure -- known as intact dilation and extraction, or intact D&E -- and both measures allow physicians to perform a standard dilation and evacuation procedure.

In the majority opinion, Judge Blane Michael wrote that the federal law would charge a physician with violating the ban only when he or she intended to perform an intact dilation and extraction from the outset. Virginia's law, on the other hand, would charge a physician who performed the procedure by mistake, Michael wrote. Michael said that the only way doctors in Virginia could avoid "risk of criminal prosecution, conviction and imprisonment" would be to cease performing second-trimester abortions, which would pose an "undue burden" on women seeking the procedure (Daily Women's Health Policy Report, 5/21).

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