By Spencer S. Hsu
Washington Post Staff Writer
Wednesday, July 1, 1998; Page A1

A federal appeals judge late Tuesday cleared the way for Virginia to begin enforcing a ban on late-term, "partial-birth" abortions today, reversing a lower court that had delayed the law after determining that it was too vague and likely unconstitutional.

The ruling by 4th U.S. Court of Appeals Judge J. Michael Luttig at 14 minutes before midnight preserved, for now at least, a law that has been championed by antiabortion activists. Last year, Luttig issued a similar ruling in support of another Virginia law that requires teenagers to notify their parents before having an abortion.

Luttig's ruling -- which abortion-rights advocates said would be appealed to either a panel of the 4th Circuit Court or the U.S. Supreme Court as soon as today -- puts the conservative federal circuit in conflict with courts in all 17 other states where bans on the late-term procedure have been challenged.

Those include Florida and Iowa, where federal courts enjoined bans that were to have taken effect Tuesday and today, respectively; and Wisconsin, where last week a three-judge panel of the 7th U.S. Circuit Court of Appeals blocked state officials from enforcing a similar ban. Eleven other states have similar laws in force.

Luttig's order reversed a ruling by U.S. District Judge Robert E. Payne, who last week barred enforcement of Virginia's ban on abortions in which a fetus is partially delivered into the birth canal before being destroyed. Payne, who will oversee a full trial on the issue next month, said the law passed last winter by the General Assembly was so vaguely worded that even state medical officials weren't sure what it really banned.

Payne contended that the law could be interpreted as a ban on abortions of all types, including constitutionally protected procedures commonly performed during the first six months of pregnancy.

But Luttig disagreed. In his 18-page opinion, he observed that the Virginia statute mirrors legislation passed by Congress and vetoed by President Clinton in 1997. The "undisputed purpose" of both measures, Luttig said, is to bar any procedure in which a physician delivers a fetus, ruptures its skull and dislodges it from a woman's body, a method that Virginia clinics challenging the ban say they do not use.

"The plain language [of the law] cannot reasonably be read to prohibit the particular procedures that plaintiffs actually do perform," Luttig wrote. "Therefore, the District Court's conclusion that the plaintiffs faced a reasonable fear of prosecution . . . was simply in error."

Abortion-rights groups quickly denounced Luttig for practicing "conservative activism" from the bench.

"This is a conflict between Judge Luttig and virtually every judge who has looked at this issue," said Simon Heller, attorney for the Center for Reproductive Law and Policy of New York City, a plaintiff in the case.

"Conservative judges as much as liberal judges can be extremely activist, and this is an extremely activist step to take," Heller said. He noted that Luttig's ruling does not mention Roe v. Wade, the landmark 1973 Supreme Court ruling that guaranteed a woman's right to have an abortion, and does not address the Virginia law's lack of a clause guaranteeing a right to abortion if a woman's health is at risk.

"Any abortion restriction that does not have an exception for . . . a woman's health is unconstitutional," Heller said. "The Supreme Court has said that over and over again."

Attorneys for the state countered that the ruling is an indication that the law is on solid legal ground.

"We are obviously pleased by the 4th Circuit's decision," Deputy Attorney General William H. Hurd said early this morning. "It is now July 1, and partial-birth abortions are illegal in Virginia. This is good news indeed. As the opinion of the 4th Circuit confirms, the law does not apply to the conventional abortion procedures that concerned the plaintiffs."

In a statement released before the judge's opinion, Virginia Attorney General Mark L. Earley (R) attacked Payne's ruling.

"We have the governor, the attorney general . . . all Virginia officials telling the federal court what the state statute means," Earley spokesman David Botkins said. "The U.S. Supreme Court has said the federal courts must accept a state's reasonable interpretation of its own laws when constitutionality is at issue."

In March, the nation's high court sidestepped the first opportunity to hear arguments on a "partial-birth" abortion ban, letting stand without comment another federal appeals court ruling that struck down an Ohio ban.

Exactly one year ago, Luttig played a similar role in another abortion fight in Virginia, striking down an injunction issued by a U.S. district judge in Roanoke against a Virginia restriction on teen abortions.

That law, which requires girls 17 and under to notify a parent before obtaining an abortion, remains in effect while the case is pending before the 4th Circuit Court of Appeals.

State lawyers, then as now, exercised a local rule permitting appellants in an emergency to skip a three-judge circuit panel and instead choose a single judge residing in the same state as the district court. Luttig, an appointee of President George Bush who lives in McLean and is a leading conservative on the court, was selected both times, although plaintiffs moved in vain Tuesday to have a panel hear the state's appeal.

Virginia's statute, passed last winter and signed by Gov. James S. Gilmore III (R), bans an abortion in which a doctor "deliberately and intentionally delivers a living fetus or substantial portion thereof" to kill the fetus.

Physicians convicted of the first-class misdemeanor would face up to 12 months in jail and a $2,500 fine.

In his injunction, Payne wrote that "the term `partial-birth abortion' is a term coined by legislators, antiabortion activists and the media. It has no accepted medical meaning."

He said the new statute would alter "well-settled Virginia law," citing testimony by the state's own medical expert witness that indicated the measure could apply to the two most common first- and second-trimester abortion procedures.

But Luttig said Payne's ruling found "ambiguity where none exists."

"The District Court all but presumed the statute unconstitutional . . . in the face of the governor's, the attorney general's and the prosecutor defendant's sworn representations" otherwise, Luttig wrote.

Earley, a former missionary who once was the personal lawyer to former Christian Coalition director Ralph Reed, has said the ban will end a practice of "killing infants" in the process of being born.

In filings Tuesday, Deputy Attorney General Hurd wrote that the Constitution included no protection for the specific late-term procedure Virginia was outlawing.

"The District Court erred by considering the abortion right articulated in Roe v. Wade to include lethal procedures performed on children in the state of being born," he said.

Staff writer Donald P. Baker contributed to this report.