Full Appeals Court To Review Decision Declaring Virginia Abortion Ban Unconstitutional

Main Category: Abortion
Article Date: 31 Jul 2008 - 6:00 PDT

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The full 4th U.S. Circuit Court of Appeals on Monday said it will review the constitutionality of a Virginia law prohibiting so-called "partial-birth" abortion, the Richmond Times-Dispatch reports. Virginia Attorney General Bob McDonnell (R) asked the full court to rehear the case after a three-judge panel had declared the law unconstitutional (Green, Richmond Times-Dispatch, 7/29).

In May, the three-judge panel of the court issued a 2-1 decision declaring the law unconstitutional. The panel said Virginia's law is more restrictive than the federal abortion ban (PL 108-105) (Emerling, Washington Times, 7/29). 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 of the three-judge panel's decision, 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, 6/3). According to BNA Health Care Daily, McDonnell's petition says that the measure would only allow for prosecution of physicians who "knowingly" performed a banned intact D&E unless that is what they intended from the outset. The petition adds that the three-judge panel should not have taken up a constitutional challenge to the law unless it was applied to a specific physician who then challenged its constitutionality (BNA Health Care Daily, 7/30).

McDonnell said the state law was "substantially similar" to the federal ban. "I am hopeful that the full court will overturn the earlier divided panel decision, and Virginia's partial-birth, infanticide ban will be found to be constitutional." Olivia Gans, president of Virginia Society for Human Life, called the court's decision a "very positive thing for pro-life Virginians." She added, "The panel's decision was out of step with what the majority of Virginians thought was a reasonable piece of legislation to begin with."

Stephanie Toti -- a lawyer with the Center for Reproductive Rights, which challenged the Virginia law in 2003 -- said the lack of legal safeguards for doctors prevents them from performing common second-trimester abortions and is a key difference between the state and federal statutes. "I'm somewhat surprised that the court has decided to rehear this case en banc, because I thought that the issues involved were fairly straightforward," Toti said. She added, "The Virginia law is extreme and far broader in scope than the federal abortion ban." According to the Washington Times, oral arguments in the case are expected to begin in late October (Washington Times, 7/29).

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