Virginia can enforce its ban on "partial birth" abortions pending appeal of a lower-court ruling that declared the ban unconstitutional, a federal appeals court in Richmond ruled yesterday.
The ruling by the 4th U.S. Circuit Court of Appeals means the ban on the controversial late-term procedure will remain in effect for at least six months and possibly more than a year, attorneys on both sides said. The appeals court probably will hear oral arguments in the case early next year.
Lawyers from the Center for Reproductive Law and Policy in New York City had challenged the ban on behalf of abortion providers throughout the state, noting that similar laws in 17 other states had been struck down.
In June 1998, U.S. District Judge Robert E. Payne issued a preliminary injunction against the law and stopped enforcement of the ban until he could determine whether to issue a permanent injunction.
But state Attorney General Mark L. Earley (R) promptly sought a stay of the preliminary injunction from 4th Circuit Judge J. Michael Luttig, who granted a stay pending Payne's final ruling.
In July of this year, Payne issued a permanent injunction, saying Virginia's law "imposes an undue burden on the right to obtain an abortion."
Again, the state attorney general's office asked the appeals court for a stay. This time, a three-judge panel--which consisted of Luttig, H. Emory Widener Jr. and Francis D. Murnaghan Jr.--granted a second stay, with Murnaghan dissenting.
Earley hailed the appeals court's stay, saying it "reaffirms the bipartisan legislation passed by the General Assembly, signed into law by the governor, and overwhelmingly supported by the majority of Virginians."
Simon Heller, the lead attorney for the opponents of the ban, said the stay merely extends the period of uncertainty for abortion providers who don't know what procedures, if any, are now legal. He also accused Virginia's attorneys of shopping for a judge, Luttig, who they knew would issue stays of the lower-court injunctions.
"This is a built-in procedure by which one side in the case can stack the deck in its own favor," Heller said. He said he would probably ask Luttig to recuse himself from the case.
David Botkins, a spokesman for Earley, responded that abortion providers have "a record of crying wolf when it comes to Virginia's laws dealing with abortion." Botkins also suggested that Virginia's abortion laws enjoy broad support in the courts. He said that after the state's parental notification law was challenged, 10 judges of the 4th Circuit found it constitutional.