U.S. Appeals Court Votes 6-5 to Uphold Virginia's 'Partial Birth' Abortion Ban

By Josh White
Washington Post Staff Writer
Thursday, June 25, 2009

A sharply divided federal appeals court ruled constitutional yesterday a Virginia law banning "partial birth" abortion that was overturned four years ago, bringing the state in line with a federal ban on the controversial procedure.

A three-judge panel of the U.S. Court of Appeals for the 4th Circuit overturned the Virginia law in 2005 by a 2 to 1 vote, finding that it did not allow for exceptions to safeguard a woman's health. The Supreme Court ordered the appeals judges to revisit the issue when it upheld the Partial Birth Abortion Ban Act two years ago, a law passed by Congress in 2003 that is similar to Virginia's ban.

Although the Virginia law permits women to choose various abortion procedures, it specifically makes it a crime for doctors to perform a rare midterm abortion that involves partially delivering the fetus before crushing its skull to ease removal.

William G. Fitzhugh, a Richmond doctor who challenged the law, argued that the procedure can be necessary to protect the life of a patient and that banning it could prevent doctors from performing legal procedures out of a fear of prosecution. Opponents of the procedure liken it to infanticide.

The appeals court split 6 to 5 in its ruling yesterday. Judge Paul V. Niemeyer, in the majority opinion, wrote that situations in which doctors would face criminal liability are so limited that it should not invalidate the law in every other circumstance. He wrote that Virginia law protects doctors who are taking prudent steps to save a patient's life and should prevent "a Morton's fork, where the doctor must choose between criminal liability or care that the doctor believes is not in the best interest of the patient."

In his dissenting opinion, Judge M. Blane Michael wrote that the Virginia law will have the effect of criminalizing the actions of doctors who seek to perform legal abortions but must resort to the banned procedure in rare instances. Michael wrote that such a law creates a "real fear of criminal liability" for doctors who perform standard abortions.

"This result places an undue burden on a woman's right to obtain a pre-viability second trimester abortion -- a constitutional right repeatedly reaffirmed by the Supreme Court," he wrote.

Virginia Attorney General William C. Mims said in a statement yesterday that he is pleased with the court's decision, as he and his four predecessors -- including Virginia gubernatorial candidate Robert F. McDonnell (R) -- have defended the statute over six years.

"This is a law that passed both houses of the General Assembly with bipartisan support," Mims said in the statement. "While we anticipate that the U.S. Supreme Court may be asked to review the decision, I am confident that the Supreme Court ultimately will uphold the law."

Gov. Timothy M. Kaine (D), who has a faith-based opposition to abortion, supports a partial-birth abortion ban and a reduction in abortions but does not support prosecuting doctors, spokeswoman Lynda Tran said.

Opponents of the law said the ruling is a setback for women's rights and could deter doctors from performing legal abortions, thus limiting options for women.

Stephanie Toti, a staff attorney at the Center for Reproductive Rights who argued the case before the appellate court, said yesterday that she is still digesting what the impact of the law will be and whether to challenge it further. She said her clients are clearly disappointed.

"This decision is yet another assault on women's constitutional rights and the protections long afforded to women's health," Toti said. "It really sets us back."

Toti said the Virginia law differs from federal law because it is broader, punishing doctors who accidentally violate the law while pursuing legal abortion procedures.

"It puts doctors in a really untenable position because it forces doctors to choose between taking all the steps necessary to protect their patients and committing a felony," Toti said.

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