Appeals Court Upholds Virginia’s Partial-Birth Abortion Ban
June 25, 2009 - 9:52 AMA sharply divided federal appeals court upheld Virginia's ban on a type of late-term abortion Wednesday, ruling that the statute does not unduly burden a woman's right to terminate a pregnancy by more conventional means.
The 4th U.S. Circuit Court of Appeals said in a 6-5 decision that the 2003 law also makes clear the type of procedure that is banned and adequately protects women's health. Abortion opponents call the prohibited procedure "partial-birth abortion," and doctors call it "intact dilation and extraction."
The decision reversed a 2-1 panel ruling in May 2008 that struck down the law, which is similar to a federal statute prohibiting a procedure in which the fetus is partially delivered and then destroyed.
"A partially born child is among the weakest, most helpless beings in our midst and on that account exerts a special claim on our protection," Judge J. Harvie Wilkinson III wrote in concurring with the majority opinion, which was written by Judge Paul V. Niemeyer.
According to the nonprofit Guttmacher Institute, which focuses on reproductive health issues, 31 states have enacted "partial-birth abortion" bans. The decision in the Virginia case leaves 15 state laws blocked by a court, while 16 laws are now in effect.
Abortion rights supporters claimed Virginia's statute was unconstitutional because the banned procedure was so broadly defined that it would prohibit the safest and most common form of second-trimester abortion. But the appeals court noted that the law specifically exempts the standard "dilation and extraction" procedure.
Virginia Attorney General Bill Mims said he was pleased with the court's ruling.
"This is a law that passed both houses of the General Assembly with bipartisan support," he 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."
Stephanie Toti, the Center for Reproductive Rights attorney who represented the abortion providers who challenged the law, said no decision has been made on whether to appeal to the Supreme Court. The nation's highest court upheld the federal ban but has made it clear that abortion bans must provide an exception to protect the woman's health.
"This decision just really ignores that precedent," she said of Wednesday's ruling. "It's really insulting to women's dignity that the court would put so little priority on protecting women's health and well-being."
In a dissenting opinion, Judge M. Blane Michael wrote the Virginia law is unconstitutional because it imposes criminal liability on "any doctor who sets out to perform a standard D&E that by accident becomes an intact D&E."
Violations of the state law would be a felony punishable by up to 10 years in prison.
All six judges who voted to affirm the law - Wilkinson, Niemeyer, Karen Williams, Dennis Shedd, Allyson Duncan and Steve Agee - were appointed by Republican presidents. Democrats appointed the five dissenters: Michael, Diana Gribbon Motz, William Traxler, Robert King and Roger Gregory.
Michael also led the three-judge panel that struck down the Virginia law twice, initially in 2005. The U.S. Supreme Court ordered the second look after upholding the federal ban in April 2007, and the appeals court panel again struck down the Virginia law.
The case is Richmond Medical Center v. Herring.
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