Federal Appeals Court Panel Overturns Virginia's Ban on Abortion Procedure Because of Lack of Health Exception

Main Category: Abortion
Article Date: 08 Jun 2005 - 11:00 PDT

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A three-judge panel of the 4th US Circuit Court of Appeals in Richmond, Va, on Friday voted 2-1 to overturn Virginia's so-called "partial-birth" abortion ban because it lacks an exception to protect the health of a pregnant woman, the... Richmond Times-Dispatch reports (Campbell, Richmond Times-Dispatch, 6/4). The 2003 law defined "partial-birth infanticide" as intentional vaginal delivery of a living infant "for the purpose of performing an overt act that the person knows will kill the partially delivered, living infant" and established it as a felony. The Center for Reproductive Rights in June 2003 challenged the law on behalf of Richmond Medical Center for Women and abortion provider William Fitzhugh. The CRR suit claimed the ban was vaguely defined and could lead to prosecution of doctors who perform dilation and extraction procedures, which are a common type of second-trimester abortion. However, supporters of the law say it targets only abortion procedures that take place once the fetus has entered the birth canal. U.S. District Judge Richard Williams on July 1, 2003, ordered prosecutors in Richmond and Henrico counties not to enforce the ban until the constitutional challenge to the law had been resolved, and Williams in February 2004 ruled that the state's ban on the procedure is unconstitutional for several reasons, including the lack of an exception for the health of a woman (Kaiser Daily Reproductive Health Report, 10/28/04). Although Friday's ruling affirmed Williams' ruling, the panel affirmed his unconstitutionality finding based only on the health exception issue, the Times-Dispatch reports (Richmond Times-Dispatch, 6/4).

Majority Opinion
"Because the Virginia act does not contain an exception for circumstance when the banned abortion procedures are necessary to preserve a woman's health, we affirm the summary judgment order declaring the act unconstitutional on its face," Judge Blane Michael wrote for the majority, which also included Judge Diana Gribbon Motz (O'Dell, AP/Washington Times, 6/4). Michael noted that the Virginia Legislature previously rejected amendments that would have allowed the procedure in certain situations to protect the health of pregnant women, the Washington Post reports. The 18-page majority opinion also cited a previous decision and said that "even if 'abortion (is) offensive to our most basic principles of morality, ... that cannot control our decision,' for our obligation is to apply the Supreme Court's definition of personal liberty, 'not to mandate our own moral code'" (Markon/Jenkins, Washington Post, 6/4).

Dissent
Judge Paul Niemeyer wrote a 28-page dissent criticizing the majority for their legal reasoning and expressing "personal revulsion" at the procedure, the Times-Dispatch reports. "The majority's opinion is a bold, new law that, in essence, constitutionalizes infanticide of a most gruesome nature," he wrote, adding, "I profoundly dissent from today's decision" (Richmond Times-Dispatch, 6/4). Niemeyer said Virginia's law differs substantially from a similar Nebraska law struck down by the U.S. Supreme Court in 2000 because it specifically bans the killing of an infant "who has been born alive but who has not been completely extracted or expelled from its mother" (AP/Washington Times, 6/4). He also said the majority based its decision on "the color of political ideology" and called the ruling a "momentous step in disconnecting our law from accepted moral norms" (Washington Post, 6/4).

Next Steps
The law's sponsor, state Delegate Robert Marshall (R), said he will not revise the legislation to include a health exception. "That would be capitulation, not compromise," he said, adding, "They are finding excuses to say that someone who is 90% born is not living. They're talking about abortion; we're talking about life." State Lt. Gov. Timothy Kaine (D) said, "Because of my long-standing opposition to partial-birth abortion, in 2002, I proposed an amendment that would have made this ban constitutional. Unfortunately, partisan politics got in the way, and the amendment was rejected by the General Assembly." Kaine, who is running unopposed for the state Democratic gubernatorial nomination, said he wants to work with legislators to develop a constitutional ban on partial-birth abortion (Virginian-Pilot, 6/4). Supporters of the law said they likely will introduce an amended version of the measure in the next legislative session in January 2006, according to the Post (Washington Post, 6/4). State Attorney General Judith Williams Jagdmann (R) said she is reviewing the ruling, adding, "I am disappointed in the court's decision but note there was a dissenting opinion among the three-judge panel." The state could ask the full 4th Circuit to review the ruling or appeal to the U.S. Supreme Court (Fiske, Virginian-Pilot, 6/4).

Reaction
Friday's ruling "reignited some of the passions" in the debate about state and federal partial-birth abortion bans, the Post reports. Supporters of the Virginia law said they were disappointed with the ruling, and state Sen. Ken Cuccinelli (R) said the decision was part of a larger trend. "We've got a major problem and it's not with the legislature, it's with the courts," he said, adding, "Because of these sorts of rulings ... we get a bunch of judges that want to write their own policy into the Constitution" (Washington Post, 6/4). Jerry Kilgore, the frontrunner for the state GOP gubernatorial nomination, also said he was disappointed by the ruling and urged Jagdmann to oppose it. Kilgore defended the law as the state attorney general from 2002 to earlier this year, when his term expired. However, Bennet Greenberg, a Planned Parenthood Advocates of Virginia lobbyist, said the ruling was not a surprise, adding, "This law was just a creative language step to stop partial-birth abortions. The Supreme Court has been constant in case after case that a woman's health is paramount" (Virginian-Pilot, 6/4). CRR attorney Priscilla Smith said, "Today, yet another federal court has found these dangerous abortion bans unconstitutional because they not only fail to protect women's health, they shamelessly endanger it" (AP/Washington Times, 6/4).

"Reprinted with permission from kaisernetwork.org kaisernetwork.org. You can view the entire Kaiser Daily Reproductive Health Report, search the archives, or sign up for email delivery at www.kaisernetwork.org/dailyreports/repro The Kaiser Daily Reproductive Health Report is published for kaisernetwork.org, a free service of The Henry J. Kaiser Family Foundation . © 2005 Advisory Board Company and Kaiser Family Foundation. All rights reserved.