Federal Appeals Court Upholds Virginia Abortion Ban

Main Category: Abortion
Article Date: 26 Jun 2009 - 6:00 PDT

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The full U.S. Court of Appeals for the 4th Circuit in a 6-5 decision on Wednesday upheld Virginia's 2003 law banning what abortion-rights opponents call "partial-birth" abortion, a procedure known medically as intact dilation and extraction, the AP/Hartford Courant reports (O'Dell, AP/Hartford Courant, 6/24). In 2005, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit ruled 2-1 to strike down the Virginia law on the grounds that it does not include adequate exceptions to protect a woman's health. The U.S. Supreme Court two years ago ordered the appeals court to revisit the issue when it upheld the Partial Birth Abortion Ban Act of 2003, a federal law similar to the Virginia law (White, Washington Post, 6/25). The three-judge appeals panel again struck down the law in 2008 (AP/Hartford Courant, 6/24). The Virginia law permits women to choose various abortion procedures but makes it a crime for providers to perform an intact dilation and extraction, which involves crushing a fetus' skull to ease removal (Washington Post, 6/25). Abortion-rights supporters said that the Virginia law is unconstitutional because its broad definition of intact dilation and extraction could also prohibit standard dilation and extraction, the more common form of second-trimester abortion. Violations of the law would be considered a felony and punishable by up to 10 years in prison. The case is Richmond Medical Center v. Herring (AP/Hartford Courant, 6/24).

William Fitzhugh, the Richmond doctor who challenged the Virginia law, said that the banned procedure is necessary to protect the life of the woman in some cases and that the law could prevent abortion providers from performing legal procedures out of fear of prosecution. Stephanie Toti, a Center for Reproductive Rights attorney who represented the plaintiffs, said that the Virginia law is broader than federal law because it punishes abortion providers who accidentally violate the law while performing legal abortion procedures.

Judge's Opinions

Judge Paul Niemeyer in the majority opinion wrote that Virginia law protects physicians who are taking needed steps to save a patient's life and should prevent "a Morton's fork, where the doctor must choose between criminal liability or care that the doctor believes is not in the best interest of the patient." He added that the circumstances in which doctors could face criminal liability are so limited that they should not invalidate the law in every other case. Judge Blane Michael wrote in the dissenting opinion that the law will create a "real fear of criminal liability" among physicians because it will have the effect of criminalizing the actions of those who seek to perform legal procedures but need to use the banned procedure in rare instances. Michael wrote that the law therefore "places an undue burden on a woman's right to obtain a pre-viability second trimester abortion -- a constitutional right repeatedly reaffirmed by the Supreme Court" (Washington Post, 6/25).

Next Steps

Toti said that no decision has been made on whether to appeal the decision to the Supreme Court. The Supreme Court's 2007 decision on the federal law made it clear that abortion bans must include exceptions for the health of the woman, the AP/Hartford Courant reports. Toti said that the appeals court's decision "just really ignores that precedent." She added, "It's really insulting to women's dignity that the court would put so little priority on protecting women's health and well-being" (AP/Hartford Courant, 6/25). Toti also said, "It puts doctors in a really untenable position because it forces doctors to choose between taking all the steps necessary to protect their patients and committing a felony" (Washington Post, 6/25). Virginia Attorney General Bill Mims said, "While we anticipate that the U.S. Supreme Court may be asked to review the decision, I am confident that the Supreme Court ultimately will uphold the law" (AP/Hartford Courant, 6/25).

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