RICHMOND, Va. (ABP) — Despite a recent Supreme Court decision upholding a federal ban on a kind of late-term abortion procedure, a federal appeals court has again overturned a similar statewide ban in Virginia because it could limit far more abortions than intended.
A divided three-judge panel of the 4th U.S. Circuit Court of Appeals, based in Richmond, Va., issued the ruling May 20. The judges said the Virginia law banning so-called “partial-birth” abortions was sufficiently different from the federal ban that the Supreme Court upheld last year's Gonzales v. Carhart decision that it remained unconstitutional.
The Gonzales decision was the first time since legalizing abortion nationwide in 1973 that the Supreme Court has upheld a nationwide ban on a specific abortion procedure. The court had previously declared any restriction on abortion unconstitutional if it did not allow exceptions to preserve the mother's life or health.
But in Gonzales, a narrow majority of justices said Congress had the right to ban the procedure — which involves the partial delivery of a fetus, whose skull is then crushed and its contents evacuated to facilitate easier passage through the birth canal — because of disagreement over whether it was ever medically necessary to protect a mother's health.
The 4th Circuit had earlier declared the same Virginia law unconstitutional because of its lack of a health exception. But last year, the Supreme Court asked lower courts to review such decisions in light of the Gonzales ruling.
Nonetheless, in the latest ruling the appeals panel's majority said the Virginia law differed from the federal one in one crucial area: It did not contain an exemption for physicians who don't set out to perform the banned dilation-and-extraction procedure, but are forced to do so. Some such procedures result when the far more common — and still lawful — dilation-and-evacuation procedure fails. That method of abortion involves dismembering the fetus while still in the womb, then removing it in pieces.
Unlike the federal law, Judge Blane Michael wrote in the panel's majority opinion, the Virginia ban penalized doctors who set out to perform a legal procedure, “but who nonetheless accidentally deliver the fetus to an anatomical landmark and who must perform a deliberate act that causes fetal demise in order to complete removal.”
Those landmarks are reached when the fetus's “entire head” or his or her “trunk past the navel” has emerged from the mother's body.
To ensure that they avoid criminal prosecution, Blane said, Virginia abortion providers would have to stop performing the most common second-trimester abortion procedure. The effect of that would be an unconstitutional curtailment of abortion rights across the commonwealth.
But, in a strongly worded dissent, Judge Paul Niemyer said that the majority was simply trying to ignore the Gonzales decision.
“The majority's selective use of statutory language and its rationalizations represent nothing less than a strong judicial will to overturn what the Virginia Legislature has enacted for the benefit of Virginia's citizens and what, in materially undistinguishable terms, the Supreme Court has upheld as constitutional.”
Virginia's attorney general, reacting to the decision, indicated that he may ask for a re-hearing before the full complement of 4th Circuit judges, or may appeal the panel's decision to the Supreme Court.
The appeals court's decision is Richmond Medical Center v. Herring, No. 03-1821.
-30-
Read more:
4th Circuit decision in Richmond Medical Center v. Herring
In sweeping decision, divided court upholds 'partial-birth' abortion ban (4/18/2007)