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Appeals court rejects Va. abortion law

WASHINGTON (BP)–A federal appeals court again has struck down a state ban on partial-birth abortion even after the U.S. Supreme Court directed the lower court to reconsider its ruling in light of the justices’ support for a similar, federal law.

A divided, three-judge panel of the Fourth Circuit Court of Appeals invalidated a Virginia law prohibiting “partial birth infanticide,” saying it went beyond the federal law and unconstitutionally restricted the right to abortion.

The Fourth Circuit opinion, announced May 20, came only 13 months after the Supreme Court affirmed the Partial-birth Abortion Ban Act, a 2003 federal measure that prohibits an abortion technique that involves the killing of a nearly totally delivered baby usually in at least the fifth month of pregnancy.

A partial-birth abortion, as typically performed, involves the feet-first delivery of an intact baby until only the head is left in the birth canal. The doctor pierces the base of the infant’s skull with surgical scissors before inserting a catheter into the opening and suctioning out the brain, killing the baby. The technique provides for easier removal of the baby’s head.

After its 5-4 ruling in April 2007, the Supreme Court returned the case from the Fourth Circuit to the appeals court for reconsideration in light of its opinion regarding the federal ban.

Pro-life advocates urged Virginia Attorney General Bob McDonnell to appeal the latest Fourth Circuit decision to the high court.

In a 2-1 opinion upholding a federal judge’s decision, Fourth Circuit Judge M. Blane Michael said the Virginia ban contains a major difference from the federal one that rendered it unconstitutional. The federal law requires that the doctor intend to perform a partial-birth procedure, or “intact dilation and extraction” (D&E), as the appeals court referred to it. The state ban does not, however.

The difference means a doctor could intend to perform a “standard D&E,” a more common method in which the baby is dismembered while still in the mother’s uterus, but end up doing a partial-birth procedure and thereby violate the Virginia law, Michael said.

“Thus, every time a doctor sets out to perform a standard D&E, he faces the unavoidable risk of criminal prosecution, conviction, and imprisonment under” the state ban, Michael wrote. “In short, the only way that a doctor could avoid criminal liability is to avoid performing D&E abortions altogether.”

The law, in essence, has the effect of banning all D&E abortions and thus “imposes an undue burden on a woman’s right to choose an abortion,” he wrote.

Judge Paul Niemeyer dissented, saying the majority’s opinion “is based on a glaring misreading” of the state law and the high court’s Gonzales v. Carhart decision. The Virginia law “criminalizes precisely the same conduct” as the federal measure, he said.

“Indeed, after reading the majority’s opinion, one is struck by the extensive efforts the opinion makes to conceive of a remote hypothetical factual circumstance that might exemplify its thesis that the Virginia Act prohibits more than is prohibited by” the federal law, Niemeyer wrote.

The National Right to Life Committee (NRLC) criticized the ruling.

“The majority opinion has used extremely contorted reasoning to reach an unreasonable decision,” Mary Spaulding Balch, NRLC’s state legislative director, said in a written release. “[The] decision flies in the face of common sense, the U.S. Supreme Court and the will of the majority of the people of Virginia.”

President Bill Clinton nominated both Michael and Diana Gribbon Motz, the other judge in the majority. President George H. W. Bush nominated Niemeyer.

The Fourth Circuit ruling came in Richmond Medical Center v. Herring.
Compiled by Baptist Press Washington bureau chief Tom Strode.

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