Richmond, VA (LifeNews.com) -- A three judge panel of the 4th U.S. Circuit Court of Appeals has ruled that a Virginia partial-birth abortion ban is unconstitutional because it does not contain a health exception.

The 2-1 decision upheld a ruling by a Richmond federal judge who said the measure was unconstitutional for the same reason. The state could ask either the U.S. Supreme Court or the full 4th Circuit appeals court to review the panel's decision.

"Because the Virginia Act does not contain an exception for circumstance when the banned abortion procedures are necessary to preserve a woman's health, we affirm the summary judgment order declaring the Act unconstitutional on its face,'' Judge M. Blane Michael wrote.

The judges based their decision on a 2000 Supreme Court ruling that struck down a Nebraska law banning partial-birth abortions because it didn't have the health exception.

However, Judge Paul Niemeyer dissented and said the Virginia law, which defines a partial-birth abortion as an infanticide, is significantly different from the Nebraska statute. He said the panel's opinion "in essence, constitutionalizes infanticide of a most gruesome nature.''

National Right to Life state legislative director Mary Balch responded to the panel's decision by calling it "outrageous" and saying the panel voted to "legally protect killing children mere inches from live birth."

"The root of the problem is that in 2000, five justices of the Supreme Court ruled that Roe v. Wade guarantees the right of an abortionist to do a partial-birth abortion whenever he sees fit," Balch said, referring to the Nebraska decision.

Pro-life groups oppose most health exceptions because they allow virtually all abortions to remain legal.

The Center for Reproductive Rights, a pro-abortion law firm that filed a legal challenge to the law, claimed it was written so broadly that it would ban other later-term abortion procedures.

Related web sites:
Appeals Court - http://www.ca4.uscourts.gov
National Right to Life - http://www.nrlc.org