Virginia Court: Abortion Law Unconstitutional

By ROBERT BARNES, The Washington Post
May 21, 2008

WASHINGTON — A federal appeals court in Richmond yesterday again declared Virginia's abortion law unconstitutional, saying it is more restrictive than the federal ban on late-term abortion that the Supreme Court approved last year.

The U.S. Court of Appeals for the 4th Circuit has never allowed Virginia's Partial Birth Infanticide Act of 2003 to take effect, but the Supreme Court last year ordered it to re-examine the law in light of its own decision upholding the ban.

Since that April 2007 ruling, federal appeals courts have struck abortion laws in Michigan and Virginia, saying they go beyond what the Supreme Court approved.

In Richmond, the same three-judge panel that overturned the law in 2005 repeated its 2-1 decision again yesterday, saying the only way a doctor could be certain he would not be prosecuted under the law was to stop performing abortions at all.

"The Virginia act imposes an undue burden upon a woman's right to choose a previability second trimester abortion," Judge M. Blane Michael wrote. He was joined by Judge Dianna Gribbon Motz.

Dissenting Judge Paul Niemeyer accused his colleagues of exploiting minor differences between Virginia's act and the federal ban.

"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," Mr. Niemeyer wrote.

The Supreme Court's ruling in Carhart was seen as a dramatic shift for the justices, who in a 5-4 vote for the first time allowed a specific abortion procedure to be banned and approved an abortion law that did not contain an exception for the health of the woman.