Virginia Court Of Appeals Hears Arguments On Abortion Ban

Main Category: Abortion
Also Included In: Litigation / Medical Malpractice
Article Date: 30 Oct 2008 - 6:00 PDT

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The full 11-judge 4th U.S. Circuit Court of Appeals on Tuesday heard arguments in a case, Richmond Medical Center v. Herring, on the constitutionality of a 2003 Virginia abortion ban that allows violations to be prosecuted as felonies, the AP/Washington Times reports (O'Dell, AP/Washington Times, 10/29). The case centers on the constitutionality of a 2003 state law banning an abortion procedure that opponents call "partial-birth" abortion and which doctors call "intact dilation and evacuation." The Center for Reproductive Rights challenged the law on behalf of the Richmond Medical Center for Women and abortion provider William Fitzhugh. A three-judge panel of the 4th Circuit Court in June 2005 voted 2-1 to overturn the law because it lacked an exception to protect the health of pregnant women. The panel cited the 2000 U.S. Supreme Court ruling in Stenberg v. Carhart, which struck down a similar Nebraska law for lacking a health exception. However, the U.S. Supreme Court in April 2007 ordered the 4th Circuit Court to review its decision to overturn the law in light of the Supreme Court's 5-4 ruling in the Gonzalez v. Carhart case, which upheld the federal Partial-Birth Abortion Ban Act of 2003 (S 3). The three-judge panel again struck down the law on the grounds that it placed an undue burden on a woman's right to obtain an abortion (Green, Richmond Times-Dispatch, 10/29).

Arguments

During the hearing, Virginia Solicitor General William Thro argued that the state law was almost identical to the federal ban (AP/Washington Times, 10/29). Judge Blane Michael -- who voted with Judge Diana Griboon Motz in the majority on the previous decisions by the three-judge panel -- said that unlike the federal law, the Virginia law is written in a way that a physician could face prosecution if he or she intends to perform a second-trimester dilation and evacuation procedure that turns out to be intact D&E if the fetus is expelled or partially expelled (Richmond Times-Dispatch, 10/29). He said, "When you put those two statutes together, they just don't look the same or read the same" (AP/Washington Times, 10/29). Michael said physicians face "a credible threat of prosecution every day" they perform a second-trimester D&E. Thro responded that the state law "does not apply to accidental, intact D&Es" (Richmond Times-Dispatch, 10/29). Judge Paul Niemeyer -- the dissenter in the three-judge panel's rulings -- said the law clearly prohibits "knowingly performing" the procedure, adding "Knowingly does not mean accidental" (AP/Washington Times, 10/29). Judge Harvie Wilkinson said it is unlikely that alleged violations of the law would ever come to a prosecutor's attention and, if they did, a physician could say there was no intent. Michael said that "the question is, does (the possibility) chill a doctor?" If so, Michael said, it could interfere with a woman's right to have an abortion.

Arguing for the plaintiff, Stephanie Toti -- a Center for Reproductive Rights attorney -- said there are key differences in the definitions in the state and federal laws. Toti said, "It's very plain the (Virginia) statute does criminalize accidental (intact) D&Es" (Richmond Times-Dispatch, 10/29). She added that the possibility of prosecution could discourage physicians from performing abortions. According to the Center for Reproductive Rights, 16 of 27 state abortion procedure bans have been permanently struck down by the courts, and 11 state bans remain (AP/Washington Times, 10/29).

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