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US Court Rules Banning Partial Birth Abortions Performed "By Accident" Are Unconstitutional

Judges tossed out for second time Virginia law criminalizing "partial birth infanticide"

By Peter J. Smith

RICHMOND, May 21, 2008 (LifeSiteNews.com) - In a ruling as frustrating as it was bizarre to pro-life advocates, judges on the 4th Circuit Court of Appeals decided Tuesday that Virginia's ban on partial birth abortion was unconstitutional in part because it criminalized doctors who committed the procedure "by accident."

The three judge panel by a vote of 2-1 tossed out for the second time the Virginia law that made it a crime for abortionists to perform what the law described as "partial birth infanticide" or Dilation and Extraction (D&X) abortions.  They are also called intact Dilation and Evacuation (D&E) abortions. The law has been challenged since 2003 and has never gone into effect.  In 2005 the same panel struck down the law, but the US Supreme Court later rescinded the ruling after it upheld a similar federal ban on abortion, and ordered the 4th circuit court to examine the constitutionality of the law in light of its recent decision.

Judge M. Blane Michael, a Clinton-appointee, in writing for the majority, contended the federal ban meant only to punish doctors determined at the outset to perform the prohibited abortions, not those who simply in the process of aborting an infant just made an honest mistake. 

However, Judge Michael wrote that the Virginia ban would make felons out of doctors who intend to perform the standard D&E procedure (where the infant is dismembered inside the womb) "but who nonetheless accidentally deliver the fetus to an anatomical landmark and who must perform a deliberate act that causes fetal demise in order to complete removal."

The law defines the anatomical landmarks as the point where "the infant's entire head" or "trunk past the navel" is "outside the body of the mother."

The majority said that the Virginia ban would discourage abortionists from performing the standard D&E method common to 2nd trimester abortions, because doctors would be liable to net themselves a felony conviction carrying a 10 year sentence if they accidently performed an intact D&E or "partial birth infanticide."

"The Virginia Act is therefore unconstitutional because it imposes an undue burden on a woman's right to obtain an abortion," concluded Judge Michael. Judge Diana Gribbon Motz, also appointed by President Clinton, joined him in his opinion.

Pro-abortion advocates heaped praise on the decision and said the court was right to strike down "such an extreme ban."

"The only way for doctors to obey this law would be to stop performing the most common second trimester abortion methods," said Stephanie Toti, staff attorney at the Center for Reproductive Rights in a press release.

"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 Act, which the Supreme Court upheld in Gonzales v. Carhart," said dissenting Judge Niemeyer.  Unlike Judges Michael and Glotz, Niemeyer was appointed by President George H.W. Bush.

"The majority's selective use of statutory language and its rationalizations," he continued, "represent 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."

The final decision in this case, Richmond Medical Center v. Herring, may come down to the Supreme Court, where Justice Anthony Kennedy will likely have the final say.  Kennedy's ruling in Gonzales v. Carhart allowed the federal ban on partial-birth abortion, because other abortion methods were available that did not restrict a woman's access to abortion.

Read the 4th Circuit Court of Appeals Ruling:
http://pacer.ca4.uscourts.gov/opinion.pdf/031821A.P.pdf

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