TOO RESTRICTIVE: In a 2 to 1 decision, the U.S. Court of Appeals for the 4th Circuit in Richmond, Va., declared Virginia's 2003 abortion law unconstitutional.

The court said Tuesday that Virginia’s Partial Birth Infanticide Act is more restrictive than the federal Partial-Birth Abortion Ban Act, which the U.S. Supreme Court upheld last year. This is the second time this court has struck down Virginia’s abortion statute.

State vs. Federal Abortion Law

Almost 90% of abortions happen during the first 12 weeks—or trimester—of pregnancy. For surgical abortions, doctors use either the vacuum aspiration or dilatation and curettage (D&C) methods through the first trimester.

About 1.4% of abortions happen during the second trimester, usually between weeks 20 and 24. Doctors use either the standard dilation and evacuation (D&E) or intact dilation and extraction (D&X or IDX) methods. D&X is used in 15% of these cases and accounts for .17% of all abortions performed annually.

Both the federal act and Virginia’s statute ban the intact dilation and extraction abortion procedure. The federal ban was appealed in three different courts, until it reached the Supreme Court. In its Gonzales v. Carhart decision, the U.S. Supreme Court ruled 5 to 4 to uphold the 2003 federal Partial-Birth Abortion Ban Act. The court said that banning the D&X procedure did not constitute an "undue burden" on women, even though the ban provides no exception if a woman's health is endangered.

Appeals Judges Disagree 2–1 on Abortion Ban

The same three judges who overturned Virginia’s abortion ban in 2005 heard the case again this week. They arrived at the same decision they did two years ago:

Strike Down Ban: The two majority judges decided Virginia’s ban violates current federal law, and would force doctors to stop providing abortions for fear they could be prosecuted. They said that sometimes when a doctor performs another procedure, such as a standard D&E, an intact D&X might accidentally happen. The federal law protects the doctor in this case, whereas Virginia’s law 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," wrote Judge M. Blane Michael in the court’s concurring opinion with Judge Diana Gribbon Motz. "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." (Washington Post, 5/20/08)

Because of this, the judges wrote, "The Virginia Act imposes an undue burden upon a woman's right to choose a previability second trimester abortion."

Uphold Ban: The dissenting judge thought his colleagues were looking for reasons to strike down the ban. He pointed out that the likelihood of a doctor performing an “accidental” intact D&X is rare, and that those doctors would be protected.

"With a troubling opinion, the majority now seeks to circumvent the Supreme Court's ruling in Gonzales v. Carhart, unwittingly inviting the Supreme Court to spell out in this case that Virginia's statute is likewise constitutional, because in the nature and scope of conduct prohibited, it is virtually identical to the federal statute," wrote Judge Paul V. Niemeyer in his dissenting opinion.

Niemeyer also said the court’s ruling signifies "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." (Washington Post, 5/20/08)

Copyright © 2010 Informify

Sources

Va. Abortion Law Overturned Again: Late-Term Ban Ruled Stricter than U.S. (The Washington Post, 5/20/08)

Virginia Law on Abortion Is Struck Down (The New York Times, 5/21/08)

Partial-Birth Abortion Ban Act (Wikipedia)

Intact dilation and extraction (Wikipedia)

Question for Readers:

Do you think doctors who accidentally perform D&X abortion procedures should be fined and/or jailed, as the Appeals judges fear the Virginia law would do?