Va. Abortion Law Overturned Again

By Robert Barnes
Washington Post Staff Writer
Wednesday, May 21, 2008

A federal appeals court in Richmond again declared Virginia's abortion law unconstitutional yesterday, saying it is more restrictive than the federal ban on late-term abortion that the U.S. Supreme Court approved last year.

The U.S. Court of Appeals for the 4th Circuit has never allowed Virginia's Partial Birth Infanticide Act of 2003 to take effect, but the Supreme Court ordered it last year to reexamine the law in light of the high court's decision upholding the federal ban.

Since that April 2007 ruling, federal appeals courts have struck down abortion laws in Michigan and Virginia, saying they go beyond what the Supreme Court approved.

In Richmond, the three-judge panel that overturned the law in 2005 repeated its 2 to 1 decision yesterday, saying that the only way doctors could be certain they would not be prosecuted under the law would be to stop performing abortions.

"The Virginia Act imposes an undue burden upon a woman's right to choose a previability second trimester abortion," Judge M. Blane Michael wrote. He was joined by Judge Diana Gribbon Motz.

Dissenting Judge Paul V. Niemeyer accused his colleagues of exploiting minor differences between Virginia's act and the federal ban to find reasons to strike it.

"With a troubling opinion, the majority now seeks to circumvent the Supreme Court's ruling in Gonzales v. Carhart, unwittingly inviting the Supreme Court to spell out in this case that Virginia's statute is likewise constitutional, because in the nature and scope of conduct prohibited, it is virtually identical to the federal statute," Niemeyer wrote.

The Supreme Court's 5 to 4 ruling in Carhart was seen as a dramatic shift for the justices, who for the first time allowed a specific abortion procedure to be banned and approved a law that did not contain an exception for the health of the woman.

"We're very pleased that the [4th Circuit] recognized that the Virginia statute was extreme," said Stephanie Toti, who had argued the case on behalf of the Center for Reproductive Rights. The center's president, Nancy Northup, said in a statement that lower federal courts are providing "a crucial backstop against anti-choice forces using the Supreme Court's recent ruling to ride roughshod over women's health."

Victoria Cobb, president of the Family Foundation of Virginia, took the opposite view. "It is disappointing that yet again just two people can thwart the will of the people, the action of a legislature, and simple justice for nearly born children," she said in a statement.

A spokesman for Virginia Attorney General Robert F. McDonnell (R) said he was also disappointed with the ruling and had not decided whether to ask the entire 4th Circuit to reconsider the case or petition the Supreme Court to take it.

The Virginia law bans the medical procedure "intact dilation and extraction" (D&E), which along with a standard dilation and extraction is used to terminate pregnancies after about 12 weeks. Up to 90 percent of abortions occur before then.

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