Va. Abortion Law Overturned Again

In a standard dilation and extraction, which remains legal, the fetus is dismembered in the womb; in an intact procedure, the fetus is partially delivered and the skull is crushed to make removal easier.

Abortion rights supporters and many doctors said the latter procedure is sometimes needed to preserve a woman's health, while abortion opponents -- and Congress, in passing the ban -- said it is not.

What concerned the judges about the Virginia law is something the state acknowledged was possible: An "accidental" intact dilation and extraction can occur when a doctor is performing a standard procedure.

Michael wrote that although the federal law protects a doctor who did not set out to perform an intact dilation and extraction, the Virginia statute does not.

"A doctor attempting in good faith to comply with the Virginia Act will accidentally violate the Act in a small fraction of cases," Michael wrote. "But the doctor never knows prior to embarking on any standard D&E procedure whether a violation will occur. Thus, every time a doctor sets out to perform a standard D&E, he faces the unavoidable risk of criminal prosecution, conviction, and imprisonment."

The only way to avoid the risk, Michael continued, is to avoid performing second-trimester abortions, and that would impose an "undue burden" on a woman's right to terminate her pregnancy.

Niemeyer accused the majority of "ignoring explicit language and undertaking its course to find ambiguity in the Virginia Act so as to be able to strike it down."

He said that the potential problem would occur in a tiny percentage of cases and that doctors who did not intend to violate the law would be protected under a "rule of lenity."

He also said the majority had ignored the Supreme Court's finding in Carhart that such laws should not be dismissed as unconstitutional on their face but challenged through specific lawsuits that show a real, rather than hypothetical, problem.

Niemeyer said the decision represented "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."

Staff writer Tim Craig in Richmond contributed to this report.