Judges Appear Hesitant on Virginia 'Partial Birth' Abortion Ban

By Robert Barnes
Washington Post Staff Writer
Friday, November 2, 2007

RICHMOND, Nov. 1 -- Virginia's attempt to revive its law restricting abortion received a skeptical reception from a panel of federal judges here Thursday in a key test of how the Supreme Court's decision to uphold federal abortion limits will affect restrictions imposed by the states.

The Supreme Court this spring upheld the federal Partial-Birth Abortion Ban Act, for the first time agreeing that a specific abortion procedure could be banned, and emphasizing government's "legitimate and substantial interest" in preserving fetal life.

But as quickly as Virginia Solicitor General William E. Thro told the three appellate judges hearing the case that the court's decision in Gonzalez v. Carhart"removes any doubt that the Virginia act is constitutional," he was stopped short.

"That doesn't really quite get you home, Mr. Thro," Judge M. Blane Michael said.

Michael and another judge on the three-member panel of the U.S. Court of Appeals for the 4th Circuit seemed more receptive to abortion rights attorneys' arguments that the Supreme Court's decision was a narrow one and did not authorize more far-reaching state restrictions, such as those the Virginia Partial Birth Infanticide Act of 2003 is alleged to employ.

It is an important argument for abortion rights activists. They are "bracing," said Janet Crepps of the Center for Reproductive Rights, for a rush of state legislative actions and lower court challenges on efforts to restrict abortion -- either by the procedures used or the requirements placed on a woman seeking the procedure -- in the wake of the court's decision.

Mailee R. Smith, staff counsel for the antiabortion Americans United for Life, said nine additional states this year considered bans on the procedure antiabortion activists label "partial birth" abortion, and Louisiana passed one this summer modeled on the federal ban but with tougher penalties for physicians -- up to 10 years of "hard labor" and a $100,000 fine.

Because the Supreme Court's decision did not come until April, well into many state legislatures' sessions, "we expect the pace to pick up this year," Smith said.

But success for antiabortion laws has been more elusive in the courts. The U.S. Court of Appeals for the 6th Circuit in June stuck down a Michigan law because its restrictions went beyond those included in the federal ban.

And Crepps said Virginia's law is an important test "because it is one of the most restrictive in the country." Thro denies that, saying it is "substantively identical" to the federal statute upheld in Gonzalez.

The Virginia act has never taken effect. A district judge in 2004 found it unconstitutional because of its similarity to a Nebraska law that the Supreme Court had struck down. The same panel that heard Thursday's arguments voted 2 to 1 in 2005 to uphold the district judge's decision.

Those judges -- Michael and fellow Clinton appointee Diana Gribbon Motz, who voted to strike the Virginia law, along with Paul V. Niemeyer, a George H.W. Bush appointee who voted to uphold it -- reconvened Thursday with what sounded like unchanged views.

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