Appeals Court Overrules Va. Late-Term Abortion Ban

By Jerry Markon and Chris L. Jenkins
Washington Post Staff Writers
Saturday, June 4, 2005

A federal appeals court yesterday struck down Virginia's law barring a controversial late-term abortion procedure, ruling that the measure is unconstitutional because it lacks an exception to safeguard a woman's health.

The 2 to 1 ruling by a panel of the Richmond-based U.S. Court of Appeals for the 4th Circuit upheld a lower court decision that threw out the law. The measure made it a crime for doctors to perform the procedure, which opponents have labeled "partial birth infanticide." The law, passed in 2003 over the objections of Gov. Mark R. Warner (D), was similar to the national ban approved by Congress the same year.

Yesterday's decision reignited some of the passions of a debate that has been waged nationally since numerous states passed laws, starting in the mid-1990s, banning the procedure. The U.S. Supreme Court ruled Nebraska's ban unconstitutional in 2000, and federal courts in three states have struck down the national ban. Those cases are on appeal.

Supporters of the Virginia law said they were disappointed in the ruling and probably would introduce an amended version during the next General Assembly session, in January. State Sen. Ken Cuccinelli (R-Fairfax) linked the Virginia decision to the national dispute over President Bush's judicial nominees in anticipation of a possible vacancy on the U.S. Supreme Court.

"We've got a major problem and it's not with the legislature, it's with the courts," Cuccinelli said. "Because of these sorts of rulings . . . we get a bunch of judges that want to write their own policy into the Constitution."

The panel wrote that its decision was based on U.S. Supreme Court decisions and noted that its obligation was to that precedent. Citing a previous decision, the panel wrote: "But 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.' "

Virginia Attorney General Judith Williams Jagdmann, whose office represents the state, noted in a statement that the decision was not unanimous. She said she is reviewing the ruling, but she did not say whether she will ask the entire 4th Circuit to review it.

Opponents of the Virginia law hailed the decision. "We are very pleased," said Priscilla Smith, director of the domestic legal program of the Center for Reproductive Rights in New York, which challenged the law on behalf of a Richmond doctor and a Richmond medical center. "This court was simply following precedent and ensuring that women's health is protected."

The 4th Circuit is generally regarded as the nation's most conservative appellate court, but yesterday's decision was written by Judge M. Blane Michael and joined by Judge Diana Gribbon Motz -- both appointees of President Bill Clinton, a Democrat. Judge Paul V. Niemeyer, an appointee of President George H.W. Bush, dissented.

Asked whether she was concerned that the full 4th Circuit could overturn the ruling, Smith said: "As long as the court follows Supreme Court precedent, we should have no problem."

The Virginia law had been the first in the nation scheduled to take effect after the U.S. Supreme Court struck down the Nebraska bill. The high court said that the Nebraska law was too broad and that it should have included an exception to allow the procedure when a woman's health was at risk -- the same issued cited yesterday by the 4th Circuit.

The Virginia General Assembly sought to avoid the constitutional issue by defining the procedure as infanticide rather than abortion. Supporters of Virginia's ban say it would stop the practice of killing infants moments after they are prematurely delivered. But the 2003 Virginia law did not include a health exception. Warner vetoed the law, and the legislature overrode his veto. Warner declined to comment on yesterday's ruling.

U.S. District Judge Richard L. Williams in Richmond blocked the law the day it was supposed to take effect in July 2003, calling it "a no-brain case" because of previous rulings. In 1998, a similar Virginia law was struck down as unconstitutional by another judge in the same court. Last year, Williams officially ruled Virginia's law unconstitutional.

The 4th Circuit yesterday cited this legal history in upholding Williams's ruling. The court said the Virginia law "does not provide an exception for instances in which an otherwise banned procedure is necessary, in appropriate medical judgment, to preserve a woman's health." Michael noted that the General Assembly had rejected proposed amendments that would have provided that exception in some instances.

In his dissent, Niemeyer said the majority's decision "is a bold new law that, in essence, constitutionalizes infanticide of a most gruesome nature."

Niemeyer accused the majority of basing its decision on "the color of political ideology" and said the ruling "amounts to a momentous step in disconnecting our law from accepted moral norms."

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